JUDGMENT Arun Kumar Gael, J.:- Rajinder Kumar (hereinafter referred to as the appellant) was tried alongwith Subhash Chand, the other co-accused for having committed offence under Sections 307/34IPC. After conclusion of the trial, appellant was found guilty of offence under Section 307 IPC and was sentenced to undergo three years rigorous imprisonment as well as to pay fine of Rs. 1,000/- in default of payment whereof the appellant was directed to undergo further rigorous imprisonment for three months. 2. It may be appropriate to mention here that Subhash Chand, the other co- accused appeared for some time; before the court below, but was subsequently declared as proclaimed offender and thus, it was the appellant alone, who was tried, found guilty and sentenced as noted above. 3. Prosecution case in brief is that on 14.12.1988 at about 8.30 PM, Amar Singh (PW -5) (hereinafter referred to as the injured) accompanied by Sudhir Kapta (PW -15) and Sanjeev Kumar (PW-4) went to Barbar Shop at Sanjauli which was owned by one Suresh Kumar. These three persons found that Suresh Kumar was not present in his shop, but appellant and Subhash Chand was there in the shop. On inquiry having been made by the injured about Suresh Kumar the appellant is stated to have shown his inability to give his whereabouts. At such point of time, injured is stated to have asked for a match stick from the appellant so that the former could light his cigarette. Match stick was not supplied rather some wordy dual appears to have taken place between the injured and the appellant. At that time, Subhash Chand, co-accused is stated in have instigated the appellant to bring dagger from inside the shop which was accordingly brought and injury was caused with the said dagger (Ext. P-l) on the left side of the abdomen of Amar Singh who fell down after having received the injury in the shop itself. As per prosecution case, at this stage another blow was attempted by the appellant who was awarded off by Sanjeev Kumar, PW and it resulted in causing a cut mark on the left arm of his jacket (Ext. P-7) which the witness was wearing at that time. 4. As per prosecution case, at this stage another blow was attempted by the appellant who was awarded off by Sanjeev Kumar, PW and it resulted in causing a cut mark on the left arm of his jacket (Ext. P-7) which the witness was wearing at that time. 4. Immediately after having caused the stab wound to Amar Singh, both the accused, according to prosecution, fled away from the spot, Sudhir Kapta removed Amar Singh, injured to Indira Gandhi Medical College Hospital, Shimla and Sanjeev Kumar PW is stated to have gone in search of the father of the injured. Since the father of Amar Singh was not available, therefore, he reported the matter at Police Post, Sanjauli and the police officials accompanied Sanjeev Kumar to hospital where it was "found that Amar Singh was not in a position to make the statement. Thus they returned back and went to spot. In the shop dagger (Ext.P-1) was found on the counter as also blood which had come out of the injury had fallen on the spot. The jacket was taken into possession alongwith the blood and dagger. During the course of investigation, blood stained clothes of Amar Singh were also taken into possession. Dr. R.S. Chauhan (PV7 -14) examined the injured and found the following injury on his person :- "1.I Sharp at one end that the lower end blunt apparent incling downwards just to the left of Xiphi sternuin. No other fresh external injury. This injury was dangerous to life. The probable duration of the injury prior to the examination of the victim was within six hours. The weapon of offence was sharp edged." 5. After completion of the investigation, challan was put in court and on committal, the trial Court below framed charge under Section 307 IPC against the appellant to which he pleaded not guilty and claimed trial. The trial Court found the appellant guilty of commission of the offence under Section 307 IPC and convicted and sentenced him as above. 6. Shri Bhupender Gupta, learned counsel for (he appellant urged that the prosecution case is highly improbable and the so-called eye witnesses Sanjeev Kumar (PW-4), and Sudhir Kapta (PW -15) are not worth of credence as, according to him it is admitted case of the prosecution that they are ail close friends. 6. Shri Bhupender Gupta, learned counsel for (he appellant urged that the prosecution case is highly improbable and the so-called eye witnesses Sanjeev Kumar (PW-4), and Sudhir Kapta (PW -15) are not worth of credence as, according to him it is admitted case of the prosecution that they are ail close friends. Besides this, no attempt appears to have been made by the prosecution to associate any other independent witness in the investigation of the case. It was further urged that the trial court has fallen into grave error by completely making out anew spot which was contrary to the prosecution evidence as well as the spot map (Ext. PW- 11 /A.) He further urged that the weapon of offence dagger (Ext. P-l) was not proved to have been recovered. Moreover, after the injured had been taken to hospital, who was stated to be bleeding on account of the stab wound having been given by the appellant, strangely enough no blood was found on the clothes of the persons who took him out of the shop where he was admittedly stabbed as per prosecution case. 7. On the other hand, Mr. M. L. Chauhan learned Assistant Advocate General has controverted all these contentions and submitted that the prosecution has been able to bring home the guilt against the appellant beyond reasonable shadow of doubt. Reliance was place on the statements of the injured Amar Singh, Sudhir Kapta and Sanjiv Kumar, PWs besides the medical evidence. 8. So far the plea regarding independent witnesses having not been associated while taking into possession the case property is concerned it does f not hold good. Court cannot lose sight of the fact that the incident is slated to I have taken place at about 8.30 P.M. on 14.12.1988. December is a winter month and the movement of people is substantially reduced at that hour of the evening, besides this, it has also come in the prosecution evidence that after the incident, one of the two persons accompanying Amar Singh had taken the latter in an injured condition to the hospital, whereas the other had gone to trace the father of Amar Singh. Since the father of Amar Singh was not available, therefore, he also went to Sanjauli Police & then to hospital. Since the father of Amar Singh was not available, therefore, he also went to Sanjauli Police & then to hospital. It was only when it was found that Amar Singh is not in a position to make statement that the police came to the spot and collected the above said material. Some time must have been consumed in this exercise. Thus, aforesaid recoveries must have been effected much latter than 8.30 PM. 9. After having considered the entire prosecution evidence as veil as material brought on record during the course of trial, Ext. PW-11/A. assumes significance as it has come in the statement of Sanjeev Kumar (PW-4) that after Subhash Chand provoked the appellant, later inflicted injury with the dagger (Ext. P-1) which resulted in Amar Singh bleeding profusely when he let down. It is not in dispute that this injury was caused inside the shop of Suresh Kumar where the appellant and his co-accused Subhash Chand were there. This position also made out from the statement of Amar Singh as well as from the statement of Sudhir Kapta (PW-I5). Collective reading of statements of these three witnesses clearly indicates that after receipt of stab wound with Ext. P-l. Amar Singh (PW -5) had fallen down. When a reference is made to Ext. PW -11/A, it is clear that no blood was noticed inside the shop which had in fact been found outside in the gallery at point 3 which is opposite the adjourning premises of Vikash Sweet Shop. It may be appropriate to mention here that this spot map was prepared by the ASI, Incharge, Police Post, Sanjauli on 14.12.1988 itself. Thus, it can not be said that either the -pot had been altered or that there was any delay in preparation of this spot map. It is noticed that it is nobodys case that the appellant had caused the stab wound with Ext.P-1 in the gallery that too opposite the adjourning premises where Vikash Sweet Shop is situate. !n this view of the matter, the entire prosecution case becomes doubtful so far the spot relating to the incident is concerned. Besides this it may also be noticed here that the prosecution has to exclude all possibilities creating doubt and in the event of there being any doubt, the benefit has to be given to the accused, appellant in the present case. Besides this it may also be noticed here that the prosecution has to exclude all possibilities creating doubt and in the event of there being any doubt, the benefit has to be given to the accused, appellant in the present case. That being so, the prosecution case against the appellant becomes highly suspicious. 10. The theory of the appellant and his other co-accused haying left the weapon of offence (Ext. P-l) while fleeing from the spot after having caused the injury to Amar Singh, appears to be highly improbable/if not un-natural. Both the accused were well aware that serious injury has been caused by the appellant. In such a situation, ordinarily the endeavour of the accused would be to destroy the evidence. 11. From the corridor of the shop where the incident had taken place as well as the place from wliere blood was found as "indicated in Ext. PW-11/A, PW-3 Amar Singh injured was-taken by PWs. 4 and 15. There is no blood found on the clothes of either of them. This shows that the prosecution has tried to withhold material evidence, why and for what reason, is not spelt out. 12. Another reason to discard the prosecution case is the manner in which the attempt was made second time by the appellant to cause stab injury to Amar Singh as well as its place. Sanjiv Kumar(PW-4) has stated that in the meantime, appellant came from other side to further inflict stab injury which hit against his jacket which got torn off and the appellant left the stab near the counter of the shop and took to his heels PW-3 Amar Singh has stated that Rajinder Kumar again came to inflict second injury. Similarly, PW-15 has stated that Rajinder Kumar inflicted another blow which missed and Sanjiv Kumar became its victim. It is further stated that Sanjiv Kumar received injury on the left arm of his jacket which was torn. Both PWs 4 and 5 have also stated that they picked up Amar Singh and brought to Indira Gandhi Medical College Hospital, Shimla. Here it may be appropriate to reiterate that spot in the instant case is the shop of Surcsh Kumar where this incident had taken place. It is not understood in these circumstances that blood was found in the corridor which is opposite the adjoining shop of Vikash Sweet Shop. 13. Here it may be appropriate to reiterate that spot in the instant case is the shop of Surcsh Kumar where this incident had taken place. It is not understood in these circumstances that blood was found in the corridor which is opposite the adjoining shop of Vikash Sweet Shop. 13. Case property of this case was requisitioned during the cousse of hearing of this appeal. It has come in the statement of PW -15 that PW-4 Sanjeev Kumar became a victim of the second blow that was intended to oe inflicted by the appellant upon Amar Singh. This resulted in his (Sanjiv Kumar) sustaining injury on his left side of the arm due to which his jacket-got torn when both the accused i.e. appellant as well as Subhash Chand had fled away from (he spot. It is nobodys case that Sanjeev Kumar received any injury. Jacket (Ext.P-7) when seen in the court during the course of hearing of this appeal, had only a cut wound on the left arm that too had no: pierced inside the arm. In this view of the matter, there was no question of PW-4 having sustained injury as a result of the second attempt on the part of the appellant to inflict injury on Amar Singh. 14. For the reasons set out hereinabove, it is clear that trial court had fallen into a grave error while convicting the appellant under Section 307 I PC and the said judgment cannot be sustained in the facts and circumstances of this case. Prosecution evidence, as discussed above, improbalises the prosecution case and benefit whereof has to go to the appellant. 15. As a result of the above discussion, it is clear that: ,c present appeal deserves to be allowed and it is ordered accordingly. Consequently the appellant is acquitted of the charge under Section 307 IPC for which he was convicted and sentenced vide impugned judgment which is accordingly set aside. Fine, if deposited, is ordered to be refunded to the appellant; who is on bail. His personal and surety bonds are discharged.