K. J. VAIDYA, M. H. KADRI, J. ( 1 ) ). The question of indeed very great importance and unprecedented also in the known annals of decided cases has cropped up for our consideration in this appeal. The said question is What indeed is the evidentiary value of that prosecution witness on whose evidence indisputably (alongwith other pieces of evidence) the trial court recorded the order of conviction and sentence against the accused under Section 302 of the I. P. Code who now comes before the court allegedly making clean breast of his conscience saying that while giving evidence before the trial court he in a state of utter unenviable helpless self pitied embarrassing condition suppressed the real and material facts of the case having direct bearing upon two vital questions ultimately determining firstly the nature of the alleged offence committed by the appellant-accused and accordingly necessary corollary to the same secondly the quantum of sentence pursuant thereto ? That to give an indication as to who is the said witness it may be stated that he is none other than the father of the appellant-accused himself who has confessed before this Court to have been the sole cause for victimising the appellant-accused charging him as having committed the murder of his second wife Lata. That to give an indication as to who is the said witness it may be stated that he is none other than the father of the appellant-accused himself who has confessed before this Court to have been the sole cause for victimising the appellant-accused charging him as having committed the murder of his second wife Lata. And the evidence which he admits to have suppressed and which is projected to be the real unvarnished truth before this court is firstly that Lata his second wife was of easy virtue having illicit relations with one Rajubhai and was also having the cankerous nature and secondly the same was not liked by the appellant-Vishal and the suppressed pent up provocation reaching the flashing point one day drew him blank to stabbing her to death Under the circumstances what ultimately we are called upon to decide is Whether a witness having given one set of evidence before the trial court on oath resulting into the conviction of the appellant-accused under Section 302 of the I. P. Code if he not exactly turns around but at the same time gives some material additional facts quite relelvant and pertinent having ultimate bearing on the complexion and nature of the offence and on resultant awarding of sentence can he be said to be a witness hostile to the prosecution and if not firstly how indeed his evidence is required to be tested and reappreciated and secondly what indeed is the evidentiary value of such a witness ? This introductory preface to examine the most important question cropped up with utmost care and circumspection arises in the background and context of firstly the evidence led before the trial court and secondly thereafter before this court by re-examining PW 4 Rajendra Trivedi as Court Witness No. 1 is stated in detail as under: ( 2 ) ). Prosecution case including that of evidence of P. W. 4-Rajendra Ramanlal before the Sessions Court. The prosecution case as briefly summed up in charge Exh. 2 against the accused is to the effect that the alleged incident wherein Vishal Rajendra boy aged 18 stabbed his step-mother Lata to death by giving her three successive knife blows outside their house situated in Gokulnagar Society at Dakor took place on 18-7-1993 at about 12. 00 noon. The prosecution case as briefly summed up in charge Exh. 2 against the accused is to the effect that the alleged incident wherein Vishal Rajendra boy aged 18 stabbed his step-mother Lata to death by giving her three successive knife blows outside their house situated in Gokulnagar Society at Dakor took place on 18-7-1993 at about 12. 00 noon. The eye-witnesses to the alleged incident were two namely (1) P. W. 2 Rachna Rajendra; and (2) P. W. 5 Prithvik Rajendra (a child witness aged 12 as corroborated by P. W. 4-Rajendra Ramanlal Trivedi and the medical evidence brought on the record. On the basis of this allegation FIR Exh. 9 was filed by P. W. 2 Rachna Rajendra which was recorded by P. W. 10 P. S. I. Dashrathbhai Parmar of Dakor Police Station on the very day within the matter of hours only. 2. 1 At trial the accused pleaded not guilty and claimed to be tried as according to him he was falsely implicated. No specific defence was raised while availing the opportunity to explain away the circumstances appearing against him. However on perusing the cross-examination of prosecution witnesses it appears that the relations between the appellant-accused and Lata stood quite strained and embittered because one Rajubhai was visiting the house even in absence of his father PW 4 Rajendra and because of that there were constant quarrels on the one hand between appellant Vishal and Lata and on the other between appellant Vishal and Rajendra and also inter se between the three. This part of the case is admitted by all the prosecution witnesses. ( 3 ) ). It appears that as the appellant accused was unable to engage advocate to defend his case before the trial court he was given free legal aid. The trial court accepting and relying upon the prosecution evidence by its judgment and order dated 28-11-1994 convicted accused Vishal for the offence punishable under Section 302 of the I. P. Code and sentenced him to undergo R. I. for life and to pay a fine of Rs. 500. 00 and in default to undergo further S. I. for 15 days giving rise to the present appeal. ( 4 ) ). At the time of admission it was frankly submitted by Mr. 500. 00 and in default to undergo further S. I. for 15 days giving rise to the present appeal. ( 4 ) ). At the time of admission it was frankly submitted by Mr. Brahmbhatt the learned Advocate (appointed) appearing for the appellant-accused that he was not in a position to assail the factum of the incident in question and the resultant involvement of the appellant-accused in stabbing his step-mother Lata to death. However having regard to the peculiar facts and circumstances of the case according to him this appears to be more or less a case of suppressed grave provocation where the appellant-accused ultimately in all suddenness losing his temper in sudden quarrel stabbed his step-mother Lata to death. Mr. Brahmbhatt further submitted that no such matter of fact and the bold defence which could should and ought to have been taken by the accused before the trial court was taken for certain compelling reasons. However he stated that if the appellant-accused was just permitted to make an application under Sections 311 and 391 of the Code praying to record the further evidence of PW 4 Rajendra Ramanlal before this court then the real truth would come out and if the later story before this Court appeals and is ultimately accepted by this Court then having regard to the facts and circumstances of the case the offence would be at the most either under Section 304 Part-I or Part-II of the I. P. Code which indeed will make sea of difference so far as the quantum of sentence was concerned to be imposed upon appellant accused who was just on the threshold of youth at the time of the unfortunate incident. ( 5 ) ). Now looking to the extraordinary submission of re-examining Rajendra Ramanlal as Court witness who was already examined before the trial court as P. W. 4 we prima facie finding some argueable case instead of summarily rejecting the same had thought it proper to ask Senior Advocate of this Court Mr. K. J. Shethna who was present in the Court to verify the facts and assist the court if possible. K. J. Shethna who was present in the Court to verify the facts and assist the court if possible. Accordingly on behalf of the appellant-accused an application under Sections 311 and 391 of the Criminal Procedure Code 1873 alongwith the affidavit of PW 4 Rajendra Ramanlal was filed and on we being prima facie satisfied that the point raised therein deserved close and careful consideration we allowed the same and directed PW 4 Rajendra Ramanlal to enter the witness box and give the evidence as Court Witness No. 1 the substance of which we may broadly reproduce hereafter. ( 6 ) ). The evidence of Court Witness No. 1 (Original P. W. 4) Rajendra Ramanlal Trivedi. His evidence is materially the same on all aspects except on two other material facts; viz. (i) the voluntary admission that he did not give the truthful version before the Court under some compelling circumstances discussed later on; and (ii) the oral dying declaration made by injured Lata immediately on his reaching home not deposed to before the trial court. Accordingly according to the Court Witness No. 1 Rajendra Ramanlal he admitted first of all that he has suppressed the most relevant material evidence coming on record before the trial court and that he honestly and sincerely feels guilty and repents for the same. Accordingly according to the Court Witness No. 1 Rajendra Ramanlal he admitted first of all that he has suppressed the most relevant material evidence coming on record before the trial court and that he honestly and sincerely feels guilty and repents for the same. According to this witness the circumstances under which he put down the mountain weight upon his conscience in order not to tell that material truth before the trial court were that (i) he had already lost his first wife Leela leaving behind her two minor children P. W. 2 Rachna and the appellant-accused Vishal; (ii) this constrained him to enter into second marriage with Lata who was 12 years younger to him; (iii) at the relevant point of time PW 2 Rachna was of marriageable age and he belonging to the orthodox Brahmin community was apprehending that if the factum regarding Lata being in illicit relations with one Rajubhai was made known to the public that would certainly forestall and seriously prejudice her matrimonial prospects spoiling future of motherless Rachna; (iv) he was keen to see that Rachna his daughter through his first wife happily goes to her hubsands house; (v) Lata was continuously ear-poisoning him which widened the gap between him and his son Vishal which ultimately culminated into giving a public notice against his son in Sandesh daily newspaper and driving him away from the house. ( 7 ) ). Reading the evidence of CW 1 Rajendra Ramanlal it appears that though ultimately he came to know that Vishal was indeed quite right in differing and hating his step-mother Lata however as stated above his deep concern and over anxiety for Rachnas marriage and that too in the background of certain social taboo and fear complex ultimately to save PW 2 Rachna suffering in her matrimonial prospects he opted to suffer in silence even at the cost of sending his son to jail. This hard decision he took it and decided it quite firmly at the relevant time but his conscience the real witness of truth which needs no oath to be taken which never prefers and give false evidence ultimately spared him not pricking every moment and all the time was haunted by the idea that if Vishal was in jail for life time it was only because of his second marriage it was only because of the constant nagging and ear-poisoning by his second wife Lata and it was only because of his crying anxiety about the marriage prospects of PW 2 Rachna which constrained him to give suppressed version before the trial court that ultimately bursted and gave way to his false temporary firmness against irresistible thrust of his inner conscience more particularly when Vishal later on informed him that he was filing an appeal in High Court he at the cost of incurring the risk of prosecution appeared before the Court submitted an affidavit in support of Vishal which we allowed permitting him to give evidence before the Court. ( 8 ) ). Now undoubtedly the evidence of PW 4 Rajendra before the trial court and before this Court as CW 1 is quite at variance as to under what circumstances appellant-accused stabbed his step-mother Lata to death. In the background of these peculiar facts legal situation we feel ourselves befaced with quite an extraordinary interesting and unprecedented situation too wherein on the one hand strictly technical and legalistic view viz. as to what is the guarantee of truth of a witness who like a weather-cock changes his direction/ version and voluntarily turns coat blowing hot while giving evidence before the trial court and cold thereafter before this court; and on the other hand when we find that the evidence of the very same witness who suppressed the material version before the trial court not only bristles with the overall probabilities of the same being apparently quite true near truth and favourable to the accused having regard to the ordinary course of human relationships and conduct guided thereunder? Under these trying circumstances of to be or not to be question is should we mechanically shut our eyes and simply refuse to take into consideration the fresh evidence recorded before us merely because it was likely to set new and unprecedented dangerous precedence as alleged and apprehended by the learned APP though it indeed does click our conscience as quite probable or should we quench our inner-most thirst for the real and substantial justice by accepting the later version of CW 1 before this court when the same fully accords with the overall probabilities of the case when the probability itself is considered to be the best and ultimate test to vouchsafe and guarantee the error on the safer side if not the whole truth under the circumstances? ( 9 ) ). Mr. B. R. Divetia Ld. APP while vehemently criticising the evidence of CW 1 submitted that to accept his evidence before this Court and that too to alter the order of conviction and sentence to one under Section 304 Part-I or Part-II as the case. may be the Court may be inclined to after hearing him would set a very dangerous precedent and there will not be any finality of the trial as witnesses after witnesses would be just tempted to file false affidavit and approach this Court to reappreciate the trial proceedings. According to the Ld. APP accepting the fresh evidence of CW 1 at this stage is nothing else but to permit the defence to fill up the lacunas which the witness was very much knowing at the time of giving evidence and yet did not depose to before the trial court and now he conveniently says that he did not depose accordingly under certain constraints of circumstances. According to the Ld. APP this sort of double standard evidence is nothing less than pure and simple perjury of giving false evidence before the court on oath suiting to the exigencies and convenience of the witness which needs to be discouraged. The learned APP on the basis of these submissions finally urged that it will not be in the overall interest of justice to accept the evidence of CW 1 Rajendra as given before this Court and that the same should be rejected as an after-thought and accordingly be kept out of consideration treating him as a hostile witness and liar. ( 10 ) ). ( 10 ) ). Now the apprehension expressed by the Ld. APP is no doubt generally and broadly speaking appears to be true to some extent. A witness who gives two types of evidence one before the trial court and thereafter quite different at the appellate stage cannot be ordinarily trusted. But then when the court is called upon to do justice in any case justice is not done on some generalisation and peripheral view of the matter without minutely examining the evidence. Justice is not done on some bald apprehensions. Justice is also not done by a court tieing itself with some technicalities. In fact when the court is called upon to do justice it is not supposed to be mechanical or to be voluntarily under duress of technicalities. Judge as a human being is not a machine but has to be humane and thinking entity. He is expected to have live approach rather than to bank upon mechanically on some formal proposition without thinking afresh having the correct judicial approach accordingly. Accordingly he has first of all got to shake up and eschew all undue obsessions apprehensions and generalised aberrative approach eclipsing the judicial vision and thereby cloting judicial discretion. To put it positively for doing justice he has to resolutely take care of his overall sense of duty the conscience and decide accordingly where the probability ultimately clicks beckoned with the sense of sound common sense. Not only that but there is also another yardstick for this Court to decide such type of cases and the same is the yardstick of the principle of abundant caution that is to say even if the Court is committing some error it should not halt or hesitate to commit the error on the safer side that is to say in case what is urged before this court is ultimately true and if it is negatived on some general objections raised by the learned APP whether this court would be advancing the cause of criminal justice or not? In substance while appreciating the evidence of prosecution witnesses at any stage the court is required to be pragmatic and of sound common sense calling in aid and drawing upon its wisdom the quintessence of the life experience. In substance while appreciating the evidence of prosecution witnesses at any stage the court is required to be pragmatic and of sound common sense calling in aid and drawing upon its wisdom the quintessence of the life experience. As regard the apprehension of the learned APP that to reconsider the entire prosecution case on the basis of the fresh version given by CW 1 before this Court will be a bad precedent we refuse to subscribe to such a general criticism. Firstly because in the matter of appreciation of evidence there cannot and indeed can never be any precedents since two cases cannot be identical for all the times to come; and secondly if the court in future is called upon to consider fresh evidence of the prosecution witness on some such other circumstance then the learned APP clearly overlooks and erroneously presupposes that the court hearing that case would be placing its intelligence and way of appreciation of evidence in cold storage and would be readily available to mechanically succumb to the fresh evidence which has been adduced before the court on mere asking. This assumption is totally unwarranted not intelligible and hence uncalled for. It is indeed too much to assume that when the court decides cases it gets boggled down by some generalisations and the submissions made on the basis of some previous precedents. One should not forget that the Court decides each case on the intrinsic strength of that particular case as stated above with its eyes wide open with its conscience clean and as clever as crystal with sound common sense with the test of prudence of ordinary man and last but not the least one of the most important test namely touch-stone provided to the criminal courts for testing the facts and circumstances of the case on the touchstone of probabilities. If the fresh evidence is tested on the touch-stone of probabilities is found to be of sterling quality inspiring the confidence of the court to be quite probable then there is nothing in the world which can prevent the court from doing justice on the basis of the said solitary test in a given case. If the fresh evidence is tested on the touch-stone of probabilities is found to be of sterling quality inspiring the confidence of the court to be quite probable then there is nothing in the world which can prevent the court from doing justice on the basis of the said solitary test in a given case. And apart this on adducing the fresh evidence with the permission of the court if the accused gets deserving benefit merely because the accused would get that benefit can never be a ground for the consideration to reject his fresh evidence before the appellate court merely because it gives different shade shape and colour to the prosecution case before the trial court. The learned APP unfortunately has clearly overlooked one of the most important aspects namely that the recording and consideration of fresh evidence is not merely the right and privilege of the accused but in appropriate cases it is also the duty of the court to record fresh evidence. Unfortunately the learned APP clearly overlooks the fact that in a given case even the State in acquittal appeal may make some such application and examine the witness that may till the scale of justice from acquittal to conviction of the accused. These are the tests and factors which we have also kept in focus before our eyes while reappreciating the evidence of CW 1 with a view to see that we do not deviate and wander away from the main path of doing justice the real and substantial one on the basis of some generalised technical prejudices. ( 11 ) ). Now accordingly before we call upon ourselves to reappreciate the fresh evidence of CW 1 taken before this Court in order that we are not misled and accordingly wander away from the just and proper decision we feel that following should be the proper guidelines. Firstly to find out whether the evidence that has been recorded before the trial court contains some germs by way of suggestion or to say in other words intrinsic foundation support which has indeed the direct relation and relevance with the fresh evidence produced before the appellate court? Secondly the ground advanced for suppressing or not adducing the said evidence before the trial court clicks reasonable and probable enough ? Secondly the ground advanced for suppressing or not adducing the said evidence before the trial court clicks reasonable and probable enough ? Thirdly if yes then having regard to the overall probabilities of the case the fresh evidence fits in with the original evidence before the trial court and probabilities the same in favour of the accused. Fourthly in such type of unprecedented cases where a witness gives altogether different or shade different version first before the trial court and thereafter before the appellate court which in a way fully or to some extent is hostile to the prosecution and further when there is neither any express provision of law nor reported decision to enlighten the path of the court to do justice the sound basic common sense the test of ordinary prudence of the man the sense of justice equity and good conscience when the accused has any defence the burden to prove the same upon him under Section 105 of the Evidence Act to prove it on basis of the probabilities and for this burden on him is not that stringent heavy and high as the one upon the prosecution and last but not the least is the cardinal principle of criminal jurisprudence viz. that let 99 accused go scot-free but not one innocent should go to jail are the sure guidelines to deliver criminal Justice. Once these encounters/hurdles are crossed and understood properly it becomes the duty of the court to give the benefit that is available to the convictaccused in the light of the fresh evidence recorded before it. ( 12 ) ). Now bearing in mind the aforesaid guiding principles let us carefully examine what is the material on record of all prosecution witnesses examined before the trial court lending intrinsic support if any to the fresh evidence of CW 1 Rajendra recorded before this court consisting that of P. W. 4 Rajendra P. W. 2 Rachna Rajendra P. W. 5 Prithvik Rajendra and P. W. 3 Jayaben Natubhai. All these witnesses have in unmistakable term admitted the following facts which witnesswise is briefly reproduced as under: 12. 1 According to PW 2 Rachna Rajendra Trivedi (1) immediately after Lata was stabbed Rajendra Ramanlal who had gone out on cycle when returned home he was told about Vishal having given knife blows to her and run away (examination-in-chief); (2) I know Rajubhai Patel of Dakor. 1 According to PW 2 Rachna Rajendra Trivedi (1) immediately after Lata was stabbed Rajendra Ramanlal who had gone out on cycle when returned home he was told about Vishal having given knife blows to her and run away (examination-in-chief); (2) I know Rajubhai Patel of Dakor. He was often coming to our house as he was a friend of our father. Even when our father was not at home Rajubhai used to come to the house in his absence. Vishal did not like his coming to the house and as a result he used to quarrel with mother Lata; (3) As Rajubhai was often coming to their house many at time there was quarrel and exchange of words; (4) Before we came to reside in the new house we were residing in the house of Rajubhai Patel as a tenant; (5) Mummy was kept in Dakor hospital for some time. There Dr. Jain (neither examined nor any case paper produced through any other doctor) had applied bandages and had given treatment. At that time my mummy was able to talk. She had also talked with me; (6) At the time of the incident my marriage had not taken place; (7) In the hospital statement of my mummy was taken. However I do not know whether her signature was obtained on that or not. It is not true that there was illicit relations between Rajubhai and my mummy and that Vishal did not like it etc. and that I was giving false evidence at the instance of my father. 12. 2 According to PW 3 Jayaben Natubhai Patel she is the neighbour of Rajendra Trivedi near whose house the incident in question took place. According to her on hearing the shouts of PW 2 Rachna she carne out of her house went near the place where Lata was lying. She was lying on the road from her house and was bleeding from her abdomen. Rajendra the husband of Lata came in the meantime and at that time Rachna told this witness that after giving knife blows her brother Vishal had run away (examination-in-chief ). In cross-examination this witness has also admitted that Lata was lying at a distance of about 30 ft. from her house. She has also admitted that after injury Lata was able to talk and when she went near her Lata was talking. In cross-examination this witness has also admitted that Lata was lying at a distance of about 30 ft. from her house. She has also admitted that after injury Lata was able to talk and when she went near her Lata was talking. She further admitted that she and Rajendra had homely relations. She was knowing the persons coming to the house of Rajendra. Rajubhai Patel who happens to be a friend of Rajendra was often coming to his house. She had asked Lata about the same but she simply replied that he was coming to their house. This Rajubhai was also coming to the house even in absence of Rajendra. Of course the witness had denied having any idea that Vishal was not liking the visits of Rajubhai to their house and as a result there was quarrel between Lata and Vishal. 12. 3 PW 4-Rajendra Ramanlal Trivedi. This witness is now examined as C. W. 1. Most of his version is set out earlier while describing the prosecution case. So far as the material version is concerned he has admitted that immediately after the incident when he reached home he found Lata in bleeding condition and his daughter PW 2 Rachna and minor son PW 5 Prithvik were standing nearby. Rachna told him that Vishal had come home and after giving knife blows had run away. Thereafter Lata was taken to the Hospital at Dakor where Dr. Jain examined her. In cross examination this witness had admitted that when he went home Lata was in bleeding condition and that she was able to speak. He has also admitted that previously he was residing in the rented house of one Vinubhai Chhotubhai and Rajubhai his son was his friend. He had friendly relations with Rajubhai and he used to come to his house. He has also admitted that Vishal did not like Rajubhai talking with Lata. He further stated that when the dead body of Lata was taken to the cremation ground he had not gone for Agni Sanskar (to lit the funeral pyre ). 12. 4 PW 5 Prithvik Rajendra. He is eye-witness and the son of Rajendra through his second wife Lata aged 14 years and at the relevant time he was aged 12 years. In para 4 of his cross examination Prithvik has admitted that he knew Rajubhai who was the friend of his father. 12. 4 PW 5 Prithvik Rajendra. He is eye-witness and the son of Rajendra through his second wife Lata aged 14 years and at the relevant time he was aged 12 years. In para 4 of his cross examination Prithvik has admitted that he knew Rajubhai who was the friend of his father. He was often coming to their house. Even when his father was not at home Rajubhai used to come. On the eve of his birth-day he used to give him presents also. He has further admitted in the cross-examination that Vishal did not like Rajubhai coming to the house and talking with his mother Lata and as a result there were often quarrels between his mother and Vishal. He has stated that his mummy used to complain to his father against Vishal and as a result there were quarrels between his father and Vishal. ( 13 ) ). From the aforesaid material excerpts from the evidence of the prosecution witnesses examined before the Sessions Court the undisputable and crystal clear facts situations that emerge are : (i) that immediately after the incident when CW 1 Rajendra returned home Lata was lying in a bleeding condition at a distance of about 30 ft. from their house; (ii) that at that time she was able to speak; (iii) that thereafter she was taken to hospital at Dakor where she was given medical treatment; (iv) that there also she was speaking and the police had recorded her statement; (v) that neither Dr. Jain from Dakor hospital is examined nor any case papers are produced; (vi) that neither the statement of Lata recorded at the hospital by police is produced on the record; (vii) that Rajubhai used to come to the house of Rajendra even in his absence; (viii) that Vishal did not like Rajubhai coming in absence of father and talking with his step-mother Lata; (ix) not only that but because of this there were constant bickerings and quarrels used to take place in the house on the one hand between Lata and Vishal and on the other between Rajendra and Vishal and also inter se between those three persons; (x) that the incident took place on road at 30 ft. distance from the house; (xi) that at the time of the incident PW 2 Rachna was unmarried and of marriageable age; (xii) that CW 1 Rajendra belonged to orthodox Brahmin community. Therefore in this background if we examine the evidence of CW 1 it appears that it was quite probably because of the peculiar mental turmoil and crisis of reasoning coupled with the anxiety of Rachnas marriage prospects not prejudiced that neither Rajendra nor his daughter Rachna nor his son Prithvik could muster enough courage to come forward before the court with the true version nor even did Vishal plead the specific defence as to how and under what circumstances he stabbed his step-mother in overall interests of his sister. Though from cross-examination of all concerned prosecution witnesses a veiled attempt was made to suggest that because Rajubhai used to come in absence of Rajendra at the house and was taking undue liberty with Lata that the appellant Vishal did not like and as a result quarrels used to take place and ultimately Lata was successful in seeing Vishal driven away from house. The defence has gone thus far and not any further before the trial court. It was just like willing to injure but afraid to attack. No definite express defence was pleaded and taken before the trial court. The attempt was to secure maximum advantage if possible by mitigating offence under Section 302 of I. P. C. with suggestions and some admissions only in cross-examination of witnesses. But this appears not to have clicked with the trial court and rightly perhaps because on the basis of loose suggestions and admissions by prosecution witnesses in crossexamination how the court was to imagine that because Rajubhai was coming in absence of Rajendra and was suspected to be having illicit relations with Lata and that it was because of this only that the relations between Lata and Vishal had reached a flashing point ultimately resulting into stabbing her to death. Under these circumstances if some constraints and compulsion of circumstances which are quite perceivable and certainly not being unnatural the witnesses as well as the accused somehow could not muster the necessary courage to come out with the bold defence before the trial court at the relevant time which reading the evidence of the prosecution witnesses as it is recorded at the time of trial sounds quite reasonable and probable. Under the circumstances if we are to discard the evidence of CW 1 Rajendra branding him as a turn-coat who has given evidence before the courts suiting to his convenience as alleged by the prosecution then in that case it is very likely that we are committing grave judicial error whereby we will be indirectly instrumental in perpetuating the injustice which was done by the prosecution evidence by giving a particular evidence before the court. This is our reasonable apprehension and accordingly true to the dictum and guideline illuminated in criminal jurisprudence that when the court feels after closely scrutinising the evidence that taking a particular view the accused was likely to be condemned and was condemned to a sentence for life then in that case it is always advisable to give him benefit of reasonable doubt consistently with the golden rule that let 99 accused persons go scot-free but see that one innocent man is not convicted. We could quite see thus the apprehension of the learned APP that CW 1 Rajendra is a turn-coat though easy to allege is indeed difficult to gulp down taking into consideration the overall view of the evidence the root of which positive lies in the trial before the Sessions Court and clearly and accordingly intrinsically enough supports the evidence of Court Witness No. 1 before this Court. It is undoubtedly true that Court Witness No. 1 Rajendra figuring as P. W. 4 before the trial court had lied and to that extent he can said to be a liar. To that extent he can be said to he accountable for getting wrongly convicted the appellant-accused for the offence punishable under Section 302 of the I. P. Code. It was indeed undoubtedly an offence and the sin to have given such a patently false evidence and that too against his own young son. But before we declare any witness a sinner who has sinned under the remote control of the conspiracy of the peculiar circumstances if ultimately he has honestly and sincerely endeavoured to repent for the same and has shed the tears sufferings of his sin then such a sin requires to be gracefully condoned as the punishment of the sin viz. the pricking conscience which has harassed him all throughout the time has taken enough toll of him. the pricking conscience which has harassed him all throughout the time has taken enough toll of him. It is indeed no joke for any father to see his own flesh and blood sentenced to life languishing in jail admittedly on false evidence given by him. However what is satisfying to us is that had CW 1 Rajendra not come before this Court as a Court witness then our Court of law of course for no fault of it but at the same time quite to some extent would have been inadvertantly instrumental and to that extent accountable in perpetuating patent injustice to the appellant and accordingly we feel greatly relieved and satisfied that with the help and assistance of CW 1 Rajendra Trivedi to some extent the wrong done to the appellant-accused by sending him to jail for life would stand rectified at our own hands that is to say ultimately the administration of justice. In this view of the matter we again ask questions to our conscience whether which version of Rajendra as P. W 4 before the trial court or the one as CW 1 before this Court accords with the probabilities and nearer to truth the answer we gather on overall analysis of the entire situation accords absolutely with the evidence given before this Court then in that case we are duty bound to give benefit of at least the reasonable doubt to the appellant-accused for whatever worth it is. In such type of cases the evidence of the witness is not to be mentally mechanically compared and if found at variance with the earlier evidence to be thrown to the dustbin dubbing him as unworthly of credit but to test it by common sense on the golden touch-stone test of the overall probabilities. ( 14 ) ). Thus this takes us to the next question as to what would be the offence that was committed by the appellant accused and to determine this we have to call in aid (i) the background in which the incident in question took place; (ii) the young impulsive and immature mind of the appellant-accused; (iii) his mother lost when minor; (iv) his step-mother Lata quite hostile having continuous illicit relations with Rajubhai in absence of Rajendra at home; (v) father Rajendra ear-poisoned to the extent he was driven away from the house rendering him destitute etc. ; (vi) further under these traumatic circumstances what indeed Vishal or in his place any other person was expected to behave except what he was driven to do and ultimately did by stabbing mother to death though he ought not to have done the same ? Here is an appellant aged 18 only suspecting his step-mother to be in illicit relation with Rajubhai not once but even two days before the alleged incident. Not only this but to cover up her illicit relations Lata appears to be continuously ear-poisoning CW 1 Rajendra constantly picking up quarrels instigating the father to drive him out from the house further instigating him to publish a public notice in the newspaper. The appellant-accused is a person with such traumatic mind rendered orphan by his step-mother Lata who also was fallen out. If by reason of the young mind having eclipsed by such dark dire circumstances and under the total black-out of the reason on the fateful day of the incident the mother picking up quarrel forestalling his entry even outside his house about 30 ft. has done somethings that cannot be said to be an act done with the intention of committing murder. On the contrary that can certainly be said to be an act done under the provocation which was all pent-up and suppressed all this time because no son even if he is a step-son would ever dagger his mother to death unless immediately prior to the incident some serious provocative incident had happened which sparked-off the revolting feeling into explosion and therefore there was some absolute compelling reason driving him rash to do the dastardly act of stabbing the mother. Under the circumstances we feel that to mechanically apply Section 302 I. P. Code without taking into consideration the backdrop of the circumstances discussed above would be not exercising judicial discretion in its proper way and perspective. The learned trial Judge was right in convicting the accused on the basis of the evidence which came to be recorded before him. But at the same time on the basis of the very evidence of CW 1 Rajendra before us and overall background of the prosecution case lending full intrinsic support to what is said before this Court we must accept his evidence and reach the inevitable and unescapable conclusion viz. But at the same time on the basis of the very evidence of CW 1 Rajendra before us and overall background of the prosecution case lending full intrinsic support to what is said before this Court we must accept his evidence and reach the inevitable and unescapable conclusion viz. that though Vishal undoubtedly stabbed Lata to death that death cannot be an offence automatically punishable under Section 302 or the I. P. Code but he has committed a lesser offence punishable under Section 304 Part-I of the I. P. Code. At this stage the learned Advocate for the appellant pointed out one decision of the Supreme Court rendered in the case of Gurdip Singh and Anr. v. State of Punjab reported in AIR 1987 S. C. p. 1151. In this case accused Gurdip Singh was convicted for the alleged offence punishable under Section 302 I. P. Code and was sentenced to life imprisonment. This was a case wherein the accused suspected that Mayabai had illicit relations with the deceased. Accordingly on the fateful day when the deceased was returning from Village Fattuwala four persons came out of the wheat-field. The first appellant had kirpan with him and with the same they caused as many as 7 injuries on the person of the deceased. Injury No. 7 was fatal according to the Doctor who examined the deceased. The Supreme Court on the basis of these facts in paragraph 6 of the judgment observed as under: We are not unmindful of the fact that the 7th injury noted in the post-mortem certificate is in the ordinary course sufficient to cause the death of the deceased. But we are not fully Satisfied that the appellants intended to kill the deceased. The correct approach. On the evidence and other circumstances in this case would according to us be to find the accused guilty under Section 304 Part I and to sentence them under that section. Taking into consideration this decision we feel that in the present case also the offence committed by the appellant accused would be punishable under Section 304 Part I of the I. P. Code and not under Section 302 of I. P. Code as contended by the learned APP. ( 15 ) ). This takes us now to yet another important question viz. what ought to be proper and adequate sentence ? ( 15 ) ). This takes us now to yet another important question viz. what ought to be proper and adequate sentence ? The sentencing process many a time is indeed a testing time and sometimes even headache also for any court of course the quantum of it quite depends upon the very many facts and circumstances of each case. Even for the same and similar offence where the minimum sentence is not prescribed it varies from case to case. Still however every court is required to make conscious efforts to weigh the sentence in gloden scale by seeing that the offence proved against the accused and sentence meted out for the purpose is equal and meets with the end of justice The maximum sentence prescribed for the offence under Section 304 Part-I is imprisonment for life. But the Legislature in its wisdom has also given the right discretion to the court to impose sentence upto 10 years also that is to say less than 10 years Now one thing is very clear that while awarding sentence the court has to see that it should not be (i) savage (ii) unduly disproportionate to the gravity and seriousness of the offence (iii) it should neither be ridiculously low nor high exhibiting judicial venom; and (iv) obsessed with the prejudice of murder like the one in the present case. In fact while awarding sentence the court has to (v) clearly disabuse its mind first of all from prejudices and must take a look afresh to the peculiar facts of the particular case; (vi) the age and type of the accused person; (vii) family background; (viii) whether but for the particular circumstance the incident in question would have at all taken place and (ix) if the accused was let off with a lighter sentence (provided no statutory minimum sentence is prescribed) there was likelihood of his repeating the offence? ( 16 ) ). Bearing in mind the aforesaid guiding principles in matter of awarding sentence and accordingly taking into consideration the facts and circumstances of the present case viz. ( 16 ) ). Bearing in mind the aforesaid guiding principles in matter of awarding sentence and accordingly taking into consideration the facts and circumstances of the present case viz. (i) the family background of appellant-accused not of criminal or anti-social; (ii) the situation where the appellant-accused was practically rendered orphan who was all the time thirsting and dying hungry for parental love; (iii) the shocking illicit relations of his step-mother with Rajubhai; (iv) the tender age of the appellant-accused; (v) the sacrifice of the appellant-accused himself in not coming out with the definite defence of his stepmother having illicit relation with Rajubhai in order to save the future of his sister; (vi) the way in which he has hackled and thrown out of the house not only by deceased Lata but by Rajendra himself it augurs indeed well for this Court to be not vengeanceful or obsessed with the tact that he has killed his mother in ultimately determining the quantum of sentence. We are told that right from the date 18-7-1993 when Vishal came to be arrested till today he is in jail and is not released on bail. That is to say he is in jail since last 2 years 3 months and few days. Taking into consideration the aforesaid set of circumstances which appear to have conspired to drive young appellant-accused stab his step-mother are quite sufficient to neutralise the gravity and seriousness of the offence which can certainly be and must be taken into consideration while awarding sentence. ( 17 ) ). We are told that at present appellant is kept in Junagadh District Jail which is meant for young convicts but on his completion of 21 years he may be kept in some other jail where he would have to live with the hardened criminals. The object of sentencing to undergo imprisonment is to make accused realise that the life of crime never pays and at the same time if some reasonable mitigating circumstance has surfaced from the record then to give him an opportunity to live a new life better life it possible more particularly in the peculiar facts and circumstances of the case as the present one to reclaim him as useful component of the society. In the present case we feel that the appellant having undergone imprisonment for more than 2 years and 3 months he be permitted to be taken out to live a new life and we hope and trust that there would not be anything wrong if we confine the sentence to the period of imprisonment already undergone by the appellant-accused. At this stage the learned APP pointed out that in the decision relied upon by the learned Advocate for the appellant wherein the Supreme Court altered the offence from Section 302 to Section 304 Part-I the accused were also aged 18 and 19 years and they were sentenced to 7 years R. I. and in this view of the matter the sentence undergone by the present appellant would not be just and proper. Now with due respect this decision of the Supreme Court is not a strait-jacket formula to be mechanically applied in the matter of awarding sentence as the background of these cases differs distinctly in view of the circumstances already discussed hereinabove. Awarding sentence may be a matter of revenge and passion for a private party. But so far as the court is concerned it is a matter of reason depending upon the overall mitigating circumstances to take a liberal view of the matter. Under the circumstances we feel that ends of justice would be fully met if we confine ourselves sentencing the appellantaccused to the period of imprisonment already undergone by him. 17. 1 In the result this appeal is partly allowed. The impugned judgment and order of conviction and sentence passed against the appellant-accused for the offence punishable under Section 302 I. P. Code is altered to that under Section 304 Part-I of the I. P. Code and the appellant is sentenced to undergo imprisonment for the period already undergone by him. Fine if paid he refunded to the appellant-accused. The appellant is ordered to be released forthwith unless his presence in custody is required in connection with any other offence. Direct service permitted through his father Rejendra Ramanlal Trivedi who is present before the Court. ( 18 ) ). Before parting this Court acknowledges with thanks the valuable services rendered by Mr. K. J. Shethna the learned Senior Advocate and also Mr. F. D. Brahmbhatt learned Advocate and Mr. Direct service permitted through his father Rejendra Ramanlal Trivedi who is present before the Court. ( 18 ) ). Before parting this Court acknowledges with thanks the valuable services rendered by Mr. K. J. Shethna the learned Senior Advocate and also Mr. F. D. Brahmbhatt learned Advocate and Mr. S. R. Divetia learned APP for ably assisting the Court in reaching the ultimate decision which it has taken. .