JUDGMENT : S.D. Pandit, J. 1. Valkubhai Rambhai Kathi original accused No. 1 in Sessions Case No. 23/88 on the file of Addl. Sessions Judge, Amreli has. preferred the present appeal against the judgment delivered by the said learned Additional Sessions Judge, Amreli on 25-5-1989 by which he has been held guilty of the offences under Sections 302 and 326 I.P.C. and sentenced him to suffer R.I. for life and R.I. for five years and to pay a fine of Rs. 5,000/- or in default to suffer R.I. for one year respectively. 2. It is the case of the prosecution that on 24-12-1987 at about 1 1.00 a.m. at village Rajula Lakhubhai Gigabhai and his brother Dhirubhai Gigabhai were attacked by the present appellant and one Manabhai Jivabhai and at that time present appellant was found armed with an axe and a knife whereas Manabhai was armed with an iron bar with T shape. The first informant Lakhubhai Gigabhai was attacked by both the accused with their respective weapons and therefore. he fell down and at that time Dhirubhai Gigabhai who tried to cover Lakhubhai Gigabhai was also attacked by both the accused with their respective weapons. It is alleged that the appellant had given blows of the axe on his head and the appellant further gave the knife blow on his head near right ear; whereas Manubhai Jivabhai had given blows of iron bar. Due to the said act both the informant and that the deceased had fallen on the ground and thereafter both the accused ran away. Both the injured persons had become unconscious and they were removed to the hospital. When Dhirubhai was reached at the hospital it was found that he was dead whereas the first in- formant Lakhubhai Gigabhai regained conscious after reaching hospital. On his examination it was found that there was a fracture of his left parietal bone and there were other injuries on his person. The F.I.R. of Lakhubha Gigabhai was recorded in the hospital and thereafter offence was registered against the accused. The postmortem was carried out on the dead body of Dhirubhai. In the post-mortem it was found that there was a compound fracture on the bone at the left side of the eye brow 10 cm. above the left eve and blood clots were found in the brain due to internal celebral hemorrhage on account of the said injuries. The postmortem was carried out on the dead body of Dhirubhai. In the post-mortem it was found that there was a compound fracture on the bone at the left side of the eye brow 10 cm. above the left eve and blood clots were found in the brain due to internal celebral hemorrhage on account of the said injuries. The accused were arrested and on completion of the investigation, they were charge-sheeted in the Court of learned J.M.F.C. at Rajula who committed them to the Court of Sessions by the order dated 13-8-1988 as they were charged for the offence under Section 302 Indian Penal Code and other offences. 3. The charge was framed against the present appellant and the other accused vide Exh.1 for offence under Section 302 read with Section 34 Indian Penal Code as well as under Section 302 Indian Penal Code individually and also sees. 325 and 326 read with Section 34 Indian Penal Code as well as under Sees. 325 and 326 Indian Penal Code individually. 4. The learned Additional Sessions Judge accepted the evidence of P.W. 2 Lakhubhai Gigabhai who was an injured witness by holding that his evidence was getting necessary support from the medical evidence as well as the evidence of P.W. 5 and other circumstantial evidence on record as regards the case of the prosecution against the present appellant. and he held him guilty of the offence punishable under Sees. 302 and 326 Indian Penal Code and sentenced him as above. He found that the prosecution had failed to prove its case against the original accused No. 2 viz. Manubhai Jivabhai and he acquitted him. 5. In order to prove its case the prosecution had in all, examined ten witnesses but the prosecution has relied principally on the evidence of P.W. 2 Lakhubhai Gigabhai who is injured in the alleged incident. The evidence of P.W. 1 Dr. Laxmikant Kababhai Dablii, the medical officer who had examined the injured P.W. 2. Lakhubhai Gigabhai and had carried out the post-mortem on the dead body of Dhirubhai and P.W. 5 Himatbhai Dhiruhhai. Admittedly the incident in question has taken place in an open broad day light and at about 11.30 a.m. It had taken place on a public road and in the bazar area. Lakhubhai Gigabhai and had carried out the post-mortem on the dead body of Dhirubhai and P.W. 5 Himatbhai Dhiruhhai. Admittedly the incident in question has taken place in an open broad day light and at about 11.30 a.m. It had taken place on a public road and in the bazar area. Therefore, in the circumstances it is quite but natural that the incident in question must have been witnessed by number of witnesses. But in spite of this the prosecution has not examined any independent witness from the vicinity where the incident in question is alleged to have taken place. It is pertinent to note at this stage that the investigating officer does not say in his deposition that he had tried to collect independent evidence from the persons who were either residents of the locality or who were present at the time of the incident brit people were reluctant to come forward to give evidence. Non examination of independent witnesses creates reasonable doubt in our minds regarding the truth of the prosecution case. 6. Now from the evidence of P.W. Lakhubhai Gigabhai at Exh. 13 as well as from the evidence of Dr. Laxmikant Dabhi it is quite clear that said Laxmanbhai Gigabhai is an injured person and he was injured at the time of the incident in question. Therefore, the evidence of this witness is of much importance in considering the case of the prosecution. But at the same time it must be also mentioned that his witness is admittedly having inimical relations with the present appellant. We are aware of the legal position that merely because the relation between the accused and witness happened to be strained or inimical, the evidence of the said witness could not be discarded. It is also settled law that such evidence will have to be scrupulously considered before accepting the same. Now if the evidence of this witness given by him oath at Exh. 13 is considered, then it would be quite clear that said witness has made lot of improvements on the material aspect and has changed his version purposefully in order to suit the other material particularly the medical evidence on record. Now if the evidence of this witness given by him oath at Exh. 13 is considered, then it would be quite clear that said witness has made lot of improvements on the material aspect and has changed his version purposefully in order to suit the other material particularly the medical evidence on record. As per the evidence of this witness which was given by him at the time of recording of his statement which was recorded in anticipation of his death, he had given a version that present appellant had given blows of axe on him as well as deceased Dhirubhai. When a witness says that the accused had given a blow of axe, it will have to be inferred or presumed that the blow of axe was given by the right side-sharp side of the axe. But if the medical evidence is considered, then it would be quite clear that there is not a single incised or sharp cut injury on the person of P.W. 2 Lakhubhai Gigabhai and on the head of deceased Dhirubhai. If the axe blows were given on the head of Dhirubhai then there ought to have been a cut or incised wound on the head of Dhirubhai but the doctor had found only a contused lacerated wound (CLW) and one sharp incised wound on the face near the left ear. Now as regards the said incised wound on Dhirubhai as per the evidence of P.W. 2, the blow was given by a knife. Even the doctor has stated that such injury is possible by a knife blow. He does not say that said injury is possible by an axe blow. Now in view of this position regarding the in- juries on the person of P.W. 2 Lakhubhai as well as deceased Dhirubhai, the witness has improved his version by making a statement that axe blows were given by the wrong side of the axe. It is the case of the prosecution that the accused had come with an axe in his hand and had attacked P.W. 2 Lakhubhai as well as deceased Dhirubhai the axe in his hand and that too with preplan and determination, then it is not at all probable that he would make use of the axe with the wrong side. It is the case of the prosecution that the accused had come with an axe in his hand and had attacked P.W. 2 Lakhubhai as well as deceased Dhirubhai the axe in his hand and that too with preplan and determination, then it is not at all probable that he would make use of the axe with the wrong side. When the attack was done in an open broad day light on a public road, with deadly weapon like axe, it is not probable that the blows of axe were by the wrong side of the axe. As per the original version present appellant and original accused No. 2 Manubhai Jivabhai had attacked him and deceased. It is his case that the original accused No. 2 Manubhai Jivabhai was armed with a T shaped iron bar and it was also a case that with the said iron bar, blows were given on the head of deceased Dhirubhai as well as on himself. But during the deposition before the Court he has completely given up his original version viz., that he as well as Dhirubhai, were given blows by iron bar by original accused No. 2-Manubhai Jivabhai. This conduct of the witness clearly shows that he wanted to save the original accused No. 2. When he is attempting to save the original accused No. 2 by completely changing his version by saying that only present appellant had attacked him as well as his brother, it becomes very difficult to accept the evidence of this witness without any hesitation of mind. 7. As per the version of this witness present appellant had initially attacked him and on account of the intervention made by deceased Dhirubhai in order to save him Dhirubhai was attacked by the present appellant. He says that after Dhirubhai was given blows by axe by the wrong side on the head, Dhirubhai had fallen down and then the accused took out a knife and gave blow of knife on the left car of Dhirubhai. He says that after Dhirubhai was given blows by axe by the wrong side on the head, Dhirubhai had fallen down and then the accused took out a knife and gave blow of knife on the left car of Dhirubhai. When the appellant had an axe in his hand, and when it is not the case that somebody had come to rescue Dhirubhai as well as injured Lakhubhai and when it is also not his case that either he himself or Dhirubliai had snatched away the axe from the hands of present appellants, the claim made by the witness that appellant had made use of another weapon a knife-in- order to give blow the deceased. does not seem to he probable and believable. There was no occasion or any reason or any circumstance for making use of the second weapon/weapons in the said attack. It is not the case of the injured Lakhubhai that they raised hue and cry and therefore, people assembled in order to save than. When nobody has come forward to interfere in the attack alleged to have been committed by the present appellant, the claim of the witness that the appellant had made use of both the weapons does not seem to be probable and believable. 8. As per the version of this witness he had become unconscious and when he regained conscious. He found himself in ill hospital. He clearly says that he did not know who brought him to the hospital. The prosecution has not at all led any evidence to show as to who had brought this injured person as well as Dhirubliai in the hospital. There is no material on record to show as to what was the condition of Uhirubhai before he was brought in the hospital whether he was conscious or unconscious. Similarly, it is not known whether said deceased had made nay disclosure to the persons who brought them in injured condition about the person who attacked them. Non-examination of the person who had brought the deceased as well as this witness in the hospital creates a reasonable doubt regarding the truth of the version given by this witness. 9. Similarly, it is not known whether said deceased had made nay disclosure to the persons who brought them in injured condition about the person who attacked them. Non-examination of the person who had brought the deceased as well as this witness in the hospital creates a reasonable doubt regarding the truth of the version given by this witness. 9. Therefore, in view of the circumstances viz., that the injured P.W. 2 Lakhubhai had made purposeful improvements in his original version and said version given by him does not seems to be probable and in view of the Fact that no independent witness is coming forward to support his version and as his original version is not corroborated by medical evidence on record, we are unable to accept the evidence off he said wit ness without any hesitation of mind. 10. No doubt the prosecution has examined P.W. 5 Himatbhai Dhirubhai in order to give corroboration to the version of P.W. Now this P.W. 5 is the son of deceased and nephew of P.W. 2 Lakhubhai. As per his version the attack was over when he went to the place of incident. He found there his father as well as P.W. 2 lying on the road with injuries on their person and therefore, he inquired with his uncle Lakhubhai as to what had happened and at that time his witness P.W. 2 had disclosed to him that present appellant had given axe blows on his Father as well as Lakhubhai. Though this version is given by this witness Himatbhai P.W. 5. Lakhubhai himself does not say in his deposition that this witness Himatbhai had come to him and had made inquirers regarding injuries sustained by him as well as his brother and father of this witness. if the evidence of this witness is also considered, then it becomes very difficult to accept the same. If the version given by this witness was true and correct one then in the natural course of human conduct, he would be the first person to remove his injured uncle as well as his injured father from the said place to the hospital for necessary treatment and to give information to police. The witness is deposing only to the effect that he went to the place where the crowd had gathered on the road. The witness is deposing only to the effect that he went to the place where the crowd had gathered on the road. There he found his father and uncle in injured condition and he made inquiries with his uncle and he does not give any further story or version. This seems to be unnatural and improbable. Therefore, no reliance can be placed on the evidence of this witness. 11. No doubt from the evidence of P.W. 1 Dr. Laxmikant Dabhi it is quite clear that deceased Dhirubhai and P.W. 2 Lakhubhai had sustained injuries on that day as described. by the said medical officer in his evidence. But merely because of the same it could not be said that, it would have been caused by the present appellant alone. As per the original version deceased Dhirubhai as well as P.W. 2 Lakhubhai were attacked by the present appellant and original accused No. 2 Manubhai Jivabhai. It is the case of this P.W. 2 that original accused No. 2 Manubhai Jivabhai had an iron bar with T shape in his hand and blows of the said iron bar were given on the head of the person of P.W. 2 as well as deceased Dhirubhai. If the description of the injuries given by the medical officer which he had found on the person of P.W. 2 Lakhubhai as well as on the body of deceased Dhirubhai are considered, then it seems that these injuries are possible more by the T shaped iron bar than by the axe blows as was narrated by P.W. 2 as per his original version. Now this P.W. 2 is trying to save said original accused No. 2 Manubhai and is trying to make improvements in his original version so as to suit the other circumstances and medical evidence on record. It also becomes very difficult to accept even this part of his evidence pertaining to the blow given by knife which get some support from the medical evidence on record. But as stated earlier the version given by this Lakhubhai that the appellant making use of two weapons in question does not seem to be probable and believable. It also becomes very difficult to accept even this part of his evidence pertaining to the blow given by knife which get some support from the medical evidence on record. But as stated earlier the version given by this Lakhubhai that the appellant making use of two weapons in question does not seem to be probable and believable. Therefore, in the circumstances though we are aware that the material on record does disclose that P.W. 2 Lakhubhai had sustained injuries and deceased had also met with homicidal death, we are unable to hold beyond reasonable doubt that the present appellant responsible for the same without any hesitation of mind in view of the material on record. 12. The investigation in this case is carelessly carried out. No efforts are made to bring on record proper and correct evidence on record. We are therefore, of the view that in view of the above circumstances and material on record there is a reasonable doubt regarding the guilt of the present appellant accused and we have no hesitation to give benefit of the same to the present appellant. Therefore, in the circumstances we hold that present appeal will have to be allowed and the order of conviction and sentence passed against the present appellant will have to be set aside. 13. But before passing the final order we would like to observe that the learned Additional Sessions Judge has not followed the mandatory provisions of Section 354(1) Criminal Procedure Code Under Section 354(1) Criminal Procedure Code every Trial Judge is bound to raise points for determination in his judgment and record reasons for his finding on those points. Here the learned Additional Sessions Judge has not raised any point for determination and therefore, has not followed the procedure laid down by Section 354(1)(c). 14. Thus the present appeal is allowed, the order of conviction and sentence passed against the present appellant is set aside and is acquitted of the offence punishable under Sections 302 and 326 Indian Penal Code He be set at liberty forth with if otherwise not required in any other case. This order be communicated to the appellant forthwith through the jail authorities. Appeal allowed.