ORAL JUDGMENT R.K. Datta. J. - The appellant was tried for murder of one Babu under Section 302 I.P.C. The prosecution had in all examined eleven witnesses in support of the charge. The appellant was held guilty for murder under Section 302 I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 5.000/-. In default of payment of fine, he was further sentenced to undergo imprisonment for one year. The substantive sentence was ordered to run w.e.f. 14-9-1994, since when the appellant was in custody in connection with this offence. The appellant charlenges the said conviction and sentence imposed on him in this appeal. 2. The prosecution case in brief is that on 14th September. 1994 at about 7.45 p. m., the deceased Babu and the appellant had come to Filsu Bar at Cortalim belonging to Felix Rodrigues (P.W. 1). The deceased came to the counter and tendered Rs. 5/- and asked for liquor. At that time Felix Rodrigues (P.W. 1) was attending other customers. Immediately after the deceased the appellant came and stabbed the deceased with a knife on his back. When the deceased turned around the appellant stabbed him on the front side as well. As a result of the stab injuries, the deceased fell down near the counter of the bar. 'This counter as at a distance of abotit 11/2 metres from the shutter of the bar and, the deceased had come upto this counter to ask for liquor. It appears that the owner of the bar Felix Rodrigues (P.W. 1) came out from the counter to find out as to what had happened and at that time the appellant attempted to assault him as a result of which he got frightened. In the meantime the customers who were there inside the bar went out of the bar. P.W.1 Felix Rodrigues also went out of the bar and closed the shutter of the bar. Thereafter some one shouted stating that one customer by name Inacio was also inside the bar and the said Inacio has started banging the shutter from inside. The shutter was opened so that Inacio could come out of the bar. When the shutter was opened it was found that the appellant was holding knife in his hand and told Felix Rodrigues (P.W.1) to call the police if he so desired. The shutter was opened so that Inacio could come out of the bar. When the shutter was opened it was found that the appellant was holding knife in his hand and told Felix Rodrigues (P.W.1) to call the police if he so desired. In the meantime, Inacio came out of the bar and shutter was again closed. The appellant started banging the shutter from inside and be also started breaking bottles inside the bar. The Police Outpost Cortalian, is at a distance of about 25 metres from the said bar and according to Police Constable (P.W. 7). Felix Rodrigues (P.W. 1) had come running there and informed him that murder had taken place in his bar. The said Police Constable (P.W. 7) made efforts to contact Verna Police Station by wireless as well as through telephone, but he was unable to get the connection. Thereafter he went to the bar and found that the shutter was closed and lot of people had gathered outside the said bar. He then took a scooter and went to Verna Police Station to inform the Police Inspector about the incident. P.W. 7 reached at Verna Police Station at about 8.30 p.m. and Police Inspector Francis Almeida (P.W. 11) came from there to the said bar at Cortalim. On reaching the said place he recorded the complaint of Felix Rodrigues (P.W. 1). P.W. 11 Francis Almeida secured the presence of two panchas and got the shutter of the bar opened. After the shutter was opened, it was found that the appellant was standing inside the bar near the shutter with a knife in his hand. The appellant was relieved of the knife with the help of the police constables. The scene of offence panchanama and the inquest panchanama where conducted. The F.I.R. which was lodged by P.W. 1 Felix Rodrigues was then registered at 11.45 p.m. The dead body was sent for post-mortem examination. The clothes of the deceased and the appellant which were attached under panchanama were sent to the Chemical Analyser. The photographs of the scene of offence had been taken. After completing the investigations the appellant was put up for trial for the murder of Babu under Section 302 I.P.C. 3. The case of the appellant as can be seen from the suggestions given to some of the prosecution witnesses and the statement of the appellant recorded under Section 313 Cr. After completing the investigations the appellant was put up for trial for the murder of Babu under Section 302 I.P.C. 3. The case of the appellant as can be seen from the suggestions given to some of the prosecution witnesses and the statement of the appellant recorded under Section 313 Cr. P.C. is that on the date of the incident the appellant alongwith the deceased had gone to the said bar, where they had drinks. The deceased wanted to have more drinks and asked for the same but the owner of the bar did not supply liquor. Accordingly, the deceased went to the counter to find out as to why liquor was not being supplied for which they were paying. Then there was some quarrel between the deceased and the person standing on the counter and the said person assaulted the deceased with knife. The appellant tried to intervene and help the deceased by saying "Mera Admi Hai" and why he was being stabbed. On this the said person namely Felix Rodrigues (P.W. 1) stabbed the deceased on his body at various parts and while stabbing, he threw the knife pushed the appellant inside the bar and closed the shutter. Accordingly to the appellant it was Felix Rodrigues who had assaulted the deceased with the knife which belongs to the said Felix. According to the appellant he has been falsely implicated in this crime. 4. The learned Add I. Sessions Judge, Margo believed the evidence of three eye witnesses as well as the other evidence on record and convicted the appellant as aforesaid. 5. Learned Advocate Shri P.P. Singh, appearing on behalf of the appellant, has urged before us that there are material discrepancies inter se the evidence of the three eye witnesses, namely P.W. 1 Felix Rodrigues. P.W. 4 lnacio Fernandes and P.W. 6 Mahesh Ugvenkar on material particulars. He took us through the evidence of the said witnesses and pointed out various discrepancies with which we shall deal after referring in details the statements of the said eye - witnesses. The said narration is necessary in order to appreciate the submissions advanced by the learned advocate for the appellant as well as of the learned Public Prosecutor Shri Bharne. The said narration is necessary in order to appreciate the submissions advanced by the learned advocate for the appellant as well as of the learned Public Prosecutor Shri Bharne. According to learned Public Prosecutor Shri Bharne reading the evidence led by the prosecution in totality and especially the evidence of the three eye witnesses, the prosecution has established the cast beyond reasonable doubt and there is absolutely no reason to interfere with the findings of the trial Judge. 6. As we have already stated, the prosecution had examined eleven witnesses in support of the charge. P.W. 1 Felix Rodrigues, P. W. 4 Inacio Fernandes and P.W. 6 Mahesh Ugvenkar are stated to be eye - witnesses of the incident. P.W. 2 is Police constable Vilas Gawas attached to Verna Police Station who had accompanied Police Inspector Almeida to the scene of offence after the matter was reported at Verna Police Station. He is a witness relating to what had transpired after the shutter of the bar had been opened. P.W. 3 Augostinho Sliveira is a panch a of the scene of offence panchanama as well as the inquest panchanama, who gives details of the scene of offence. P.W. 5 Joao Rodrigues is the father of P.W. 1 Felix Rodrigues who is a witness relating to what transpired after the police had come to the scene of offence. P.W. 7 Shekhar Raut is Police Constable attached to Cortalim Outpost to whom the murder was reported first and who in turn had gone to the Verna Police Station. He also gives details as to what transpired after the shutter of the bar was opened. P.W. 8 Dr. Mallya had taken the blood of the appellant for blood grouping and the blood group of the appellant was found to be O Rh+ve. P.W. 9 Dr. Rodrigues has referred the appellant to the Blood Bank for the purpose of grouping. P.W. 10 Dr. Usgaonkar has conducted post-mortem on the dead body of the deceased and P.W. 11 is the Investigation Officer in this case. 7. P.W. 1 Felix Rodrigues has stated, that he is the owner of Filsu Wine Shop at Cortalin, where Mahesh Shivram Ugvenkar (P.W. 6) is working as a waiter. According to him, at about 7.45 p.m., on 14-9-1994, one person entered the bar, stood near the counter and asked him to serve liquor. 7. P.W. 1 Felix Rodrigues has stated, that he is the owner of Filsu Wine Shop at Cortalin, where Mahesh Shivram Ugvenkar (P.W. 6) is working as a waiter. According to him, at about 7.45 p.m., on 14-9-1994, one person entered the bar, stood near the counter and asked him to serve liquor. He was at that time attending other customers. At that time suddenly one more person entered the bar and stabbed the said person who was asking for liquor from behind. This incident took place near the counter of the bar. After the first stab with the knife, the deceased turned around towards the appellant and the appellant gave another stab with knife to the deceased on the front side of his stomach. P.W. 1 Felix came out to find out what had happened and at that time the appellant attempted to assault him, due to which he was frightened and shouted to call the police. In the meantime, the customers who were inside the bar also came out and the shutter of the bar was closed. Someone shouted that customer Inacio was left inside the bar and in the meantime the said Inacio started banging from inside. The shutter was opened and Inacio, who has been examined as P.W. 4, also came out. At that time it was seen that the appellant was holding knife in his hand and he told P.W. 1 Felix to call for the police in case he so desired. The shutter was again closed and in the meantime the police was called. The police arrived at about 8.45 p.m. and when the shutter was opened, the appellant was found 'with the knife in his hand inside the bar. According to Felix (P.W. 1), the police on seeing the knife in the hand of the appellant threw out the same by beating a stick on the same. Thereafter the police caught the appellant. He found many bottles broken by the appellant and also that the drawer of the counter was damaged, as well as Rs. 750/- were found to be missing, which was subsequently found in the pocket of the appellant. The police recorded his complaint. He identified knife (M.O. 1) as the same with, which the appellant had assaulted the deceased. He gave dimensions of the counter which had a length of about 2 metres. 750/- were found to be missing, which was subsequently found in the pocket of the appellant. The police recorded his complaint. He identified knife (M.O. 1) as the same with, which the appellant had assaulted the deceased. He gave dimensions of the counter which had a length of about 2 metres. Behind the counter is the showcase in which liquor bottles are kept. Liquor bottles are also kept at the counter. The height of the counter is of his chest level. Though according to him there were many customers in the bar at the time of the incident yet he was not able to state how many customers were actually there when the incident in question took place. According to him, he was attending to the customers when the incident took place. At a later stage during the cross-examination, he, however, states that the customer whom he was attending had already left and it was only thereafter that the appellant had come inside the bar and it was only after the said customer had left that the deceased had asked for the liquor. According to him, he had given the complaint at about 8.45 to 9.00 p.m. He further stated that this complaint was, written both at the bar and at the Police Station. He explained that in the bar some notes were taken and in the police station it was written. The F.I.R., as we have already stated was registered at 11.45 p.m. He categorically stated that at the time when the incident took place. Mahesh Ugvenkar (P.W. 6) was present. He further stated that he had told the police about the presence of Mahesh Ugvenkar but when he was confronted with the F.I.R., it was found that the name of Mahesh Ugvenkar did not figure in the F.I.R. He could not state how the police came there or who called them. He gives the distance of Cortalim Outpost as 25 to 30 metres from his bar. In between the bar and the police station' there are three houses and if somebody is called from the police station from the bar, it can be immediately heard there. He also stated that in his complaint he had stated that cash of Rs. 750/- was missing from the counter" but this fact when confronted with the, F.I.R. was found to be not there. He also stated that in his complaint he had stated that cash of Rs. 750/- was missing from the counter" but this fact when confronted with the, F.I.R. was found to be not there. This is what, in nut shell, in the statement of P.W. 1 Felix Rodrigues in the Court. 8. The next eye - witness is Inacio Fernandes (P.W. 4). He has stated that on the date of the incident he was sitting in the bar for about 10 minutes from 7.30 p.m. Two persons came in the bar, one to be followed by the other. He identified the appellant as one of the said two persons. He did not know what had happened amongst them but he saw that assault was going on. The appellant had a knife in his hand at the time of the assault. Though he had seen the appellant stabbing the deceased with the said knife, yet he did not notice the places whereall the appellant had stabbed him. He, however, noticed that one blow with the knife was 'given on the right side of the neck and the other injury was on the back side. After the two stab injuries, the deceased fell on the ground. The owner of the bar had come to rescue the deceased but the appellant blocked his way and told him not to interfere, saying that the deceased was his man (Mera Admi). Alongwith the owner, waihr of the bar by name Mahesh also came besides the other waiters. Both the said waiters wanted to catch hold of the appellant but the appellant gestured the knife at them. They however moved behind and, in that process, went out of the bar and closed the shutter. He the appellant and the deceased were in the bar when the shutter was closed from outside. According to him he earlier made an attempt to go out of the bar along with others but he could not bent down in order to go out and in the meantime the shutter was closed. Thereafter he banged the shutter from inside. Before the shutter could be opened the appellant came again towards him with the knife in his hand. The appellant\with his left hand removed a sum of Rs. 200/ from his pocket and kept it with him. He did not know the name of the other waiter. Thereafter he banged the shutter from inside. Before the shutter could be opened the appellant came again towards him with the knife in his hand. The appellant\with his left hand removed a sum of Rs. 200/ from his pocket and kept it with him. He did not know the name of the other waiter. Accordingly to him, P.W. 1 alone was at the counter and no other customer was there at the counter. He has further stated that after the deceased had ordered for a drink and the drink was being prepared and before the deceased could take liquor, the appellant came and stabbed him. The moment the fight started between the appellant and the deceased, the customers from the bar apprehending trouble went away. He did not know the name of any of the said customers. About 200 people had gathered outside the bar. His statement was recorded by the police after 5 or 6 days. According to him, he had told the police that the appellant had removed Rs. 200/- from his pocket, but when he was confronted with his statement before the police, it was found that the said fact was not recorded therein. 9. The next eye - witness is Mahesh Ugvenkar (P.W. 6) who was working as waiter in the said bar. According to him, at about 7.45 p.m. the owner of bar Filsu was at the counter in the bar and at that time one man came, offered a five rupee note and asked for half quarter. At that time Felix (P.W. 1), Inacio (P.W. 4) and about two or three more persons were there. The appellant came from behind the said person who was waiting for liquor and stabbed him on the back, but where he stabbed or with what was not seen by Mahesh Ugvenkar at that time. He further states that he saw that once the appellant stabbed the said other person on his back side, the said other person immediately turned, whereupon the appellant had stabbed the other person on his stomach. The witness pointed out the lower back as the area where the appellant had stabbed the other person. He did not observe the other part of the body where the appellant had stabbed after stabbing him on his stomach. According to him, the appellant had stabbed the deceased twice, after which he fell down. The witness pointed out the lower back as the area where the appellant had stabbed the other person. He did not observe the other part of the body where the appellant had stabbed after stabbing him on his stomach. According to him, the appellant had stabbed the deceased twice, after which he fell down. He (P.W. 6) then went out of the bar and inside the appellant started smashing the liquor bottles. The shutter of the bar was closed. However, one customer by name Inacio was caught inside the bar and he did not know whatall the appellant did to him but when the shutter was slightly open, Inacio came through it. Later on, the police came and opened the shutter and the appellant still had a knife with him in his hand. The police put stick on his hand and made him to drop the knife. The appellant was drunk (tight asillo). During cross-examination, he has stated that when the deceased came to the counter, nobody else was present by his side at the counter and at the relevant time, the only customer was Inacio and nobody else was in the bar. He denied to have stated before the police that he was washing glasses outside the bar and saw the appellant stabbing the deceased on his back. He also denied to have told the police whereall the deceased was stabbed by the appellant or how many times he was so stabbed. He was confronted with portion marked "A-A" of his statement before the police where it was recorded that "He again hit the victim with the knife several times". He has further stated that he and Felix had come out together and it was Felix who had closed the shutter from outside. According to him, when the shutter was opened, the appellant was found sitting in the bar with a knife in his hand. 10. At this stage, we shall also briefly narrate as to what the other witnesses have deposed relating to what had transpired after the shutter was opened by the police. P.W. 2 Vilas Gawas has stated that when the shutter was opened, the appellant was standing inside the bar with a knife in his right hand. According to him, police had not told the appellant to give the knife but the police held him by force and took away the knife from him. P.W. 2 Vilas Gawas has stated that when the shutter was opened, the appellant was standing inside the bar with a knife in his right hand. According to him, police had not told the appellant to give the knife but the police held him by force and took away the knife from him. According to him, they had caught the appellant from behind. At first they caught his hand in which he had the knife and the appellant was caught by PC 4178. P.W. 3 Augostinho Silveira has stated that the appellant was standing with the knife close to the shutter at a distance of about 11/2 metres. From there, the distance to the counter was again 11/2 metres. P.W. 7 Shekhar Raut. PC 4178, has stated that after the shutter was opened. Vilas Gawas (P.W. 2) had caught the appellant from the right side while he caught him from the left side and it was Vilas Gawas who removed the knife from the hands of the appellant. 11. In the light of the evidence of the witnesses narrated above we shall now examine the contentions advanced by learned advocate for the appellant one after the other. The first challenge of attack is that the F.I.R. in question has been recorded at 23.45 hours. He has drawn our attention to the evidence of P.W. 1 Felix Rodrigues wherein it is stated by him that he gave his complaint at 8.45 to 9.00 p.m.; that his complaint was written both at the bar and the police station; that in the bar some notes, were taken and in the police station it was written. No such written notes which are stated to have been recorded at the bar have been produced in the course of the trial. The record shows that the F.I.R. was registered at 11.45 p.m. and according to complainant (P.W. 1), the said complaint was written in the police station. At this stage, it is pertinent to note that according to P.W. 7 Shekhar Raut. Police Constable attached to the Police Outpost at Cortalim. P.W. 1 Felix had come running and informed him about the murder in his bar and that the victim and the appellant were kept locked in the bar. P.W. 7 tried to contact Verna Police Station, but could not succeed. He came to Filsu Bar and saw the shutter closed. Police Constable attached to the Police Outpost at Cortalim. P.W. 1 Felix had come running and informed him about the murder in his bar and that the victim and the appellant were kept locked in the bar. P.W. 7 tried to contact Verna Police Station, but could not succeed. He came to Filsu Bar and saw the shutter closed. Thereafter he took a scooter and went to Verna Police Station to inform the Police Inspector. which he accordingly did. This information which was given by Shekhar Raut (P.W. 7) has not been produced. In fact, the information which was given by Felix (P.W. 1) to Shekhar Raut (P.W. 7) at Police Outpost and thereafter the information given by P.W. 7 Shekhar Raut to the Verna Police Station would in fact, be t he First Information Report. Felix (P.W. 1), however, does not state that he reported to P. W. 7. The prosecution has neither produced any such information which was recorded either at the Cortalim Outpost or at the Verna Police Station. Not even station diary entry has been produced by the prosecution and we feel that this vital and relevant information has been suppressed by the prosecution and instead what has been produced is a version which was recorded at a later point of time which was registered at 11.45 p.m. 12. Learned Advocate for the appellant has drawn our attention to a large of discrepancies on material particulars in relation to the evidence of eye - witnesses P.W. 1 Felix. P.W. 4 Inacio and P.W. 6 Mahesh. According to P.W. 1 Felix, he was attending to the other customers when the deceased had come to the bar, followed by the appellant who stabbed the deceased from behind. However, during the cross-examination, he tried to change his version and stated that the appellant and the deceased had come only after the customer he was attending to had already left. According to him the other customers who were there present in the bar had left in the meantime. He speaks of only one waiter namely, Mahesh Ugvenkar (P.W. 6) present in the bar. As against this, Inacio (P.W. 4) states that besides waiter Mahesh, there was another waiter and both the said waiters wanted to catch hold of the appellant but the appellant gestured the knife at them. He speaks of only one waiter namely, Mahesh Ugvenkar (P.W. 6) present in the bar. As against this, Inacio (P.W. 4) states that besides waiter Mahesh, there was another waiter and both the said waiters wanted to catch hold of the appellant but the appellant gestured the knife at them. This statement of Inacio (P.W. 4) is not supported either by P.W. 10 P.W. 6. According to him no customer was there on the counter whereas according to P. W. 1. there was one customer at the counter, to whom l1e was attending when the deceased came there, though during his cross-examination, he had stated that the customer had already left. According to P.W. 4 the drink was being prepared by P.W. 1 after the deceased had asked him for the same. Signifkantly. P.W. 1 himself does not state anything as to whether he took any steps for the purpose of preparing any drink which was asked for by the de ceased. On the contrary, the evidence of P.W. 1 is that as soon as the deceased had asked for liquor, the appellant came from behind and stabbed him. The statement of this witness (P.W. 4) was in fact recorded after, twelve days on 26-9-1996 and there is no satisfactory escalation for the delay in recording the said statement According to the prosecution case. Inacio (P.W. 4) was locked inside he bar when the shutter was closed and the could have thrown further light on what had transpired when he was alongwith the appellant, in the bar. He does not give any further details and only stated that the appellant had removed Rs. 200/- from his pocket yet he ad not even revealed this to the police 1 his statement. The evidence of this witness does not inspire confidence. 13. P.W. 6 Mahesh has in fact a different story to tell about the incident question It is pertinent to note that the name of this witness did not figure in the F.I.R. P.W. 1 Felix has stated that he had told the police about the presence of this witness Mahesh at the time of the incident and this fact was recorded by the police. However, when he was confronted with the F.I.R. it was found that the name of this witness did not figure in the F.I.R. According to this witness at the time of the incident besides Felix and Inacio there were two or three more persons present, but nobody was present near the counter other than the appellant. We have already pointed out that according to P.W. 1 Felix, he was attending to the other customers when the appellant had come to the counter. At a later stage during the cross - examination this witness (P.W. 6) states that at the relevant time the only customer was Inacio and nobody else was there in the bar. It appears that this witness had told the police that he was washing glasses outside the bar and this fact would be consistent with the testimony of Mahesh (P.W. 6) since according to him, he did not notice where the deceased was stabbed or with what, though he states that sence the deceased had turned around the appellant stabbed him with knife on his back side, which is not correct since the prosecution case is that when the deceased turned around the appellant had stabbed him in the stomach. He denies to have told the police where all the deceased was stabbed by the appellant or how many times he was so stabbed, but in his statement before the police, with which he was confronted it is mentioned that the appellant hit the victim several times. He also states that when the shutter was down the appellant was sitting on a chair which is in fact contradictory to the other statements of the witnesses. It is in this context that the omission of the name of this witness in the F.I.R. gains importance and a reading of his testimony leads us to believe that the incident in question was not in fact witnessed by this person and he was introduced into the picture at a later stage. being in employment of P.W.1 Felix. 14. Even the story put forward by Felix (P.W. 1) does not inspite confidence. According to him he was on the other side of the counter. Height of the counter is stated to be of his chest height and admittedly on the said counter there were bottles. The deceased was standing across the counter on the other side and was asking for liquor. According to him he was on the other side of the counter. Height of the counter is stated to be of his chest height and admittedly on the said counter there were bottles. The deceased was standing across the counter on the other side and was asking for liquor. In this state, it is rather doubtful as to whether Felix (P.W. 1) could have seen the assault either on the back side or on the front side in the stomach region from inside the counter. In fact Felix (P. W. 1) himself states that he came out of the counter to find out what had happened. In case he had already seen the appellant assaulting the deceased from the other side of the counter then there would be no need to come out of the counter in order to find out what had happened. 15. Another important aspect which does not appear to be probable in the circumstances of the case is the fact that the appellant did not make any attempt to go out of the bar though he was standing close to the counter and the counter is at a distance of about 11/2 metres from the shutter. It is in evidence that the customers as well as Felix (P.W. 1) managed to go out of the bar and closed the shutter. It does not sound to reason that the appellant would continue to remain inside then the other people were going out of the, bar and the shutter was being closed by Felix (P.W. 1). It is in evidence of P.W. 1 Felix that the appellant had attempted even to assault him and Felix (P.W. 1) had shouted to call for the police. In all probability, in such circumstances, any normal human being would try to run out of the bar and it is not shown by the prosecution that the appellant was a person of abnormal nature. It is also in evidence that Inacio (P.W. 4) had banged the shutter from inside and the shutter was opened for Inacio to come out. Inacio in fact came out of the shutter. Though according to P.W. 1 Felix the shutter was opened for Inacio, yet according to P.W. 6 Mahesh, the shutter was slightly open through which inacio came out. He does not at all speak of the shutter being opened by somebody and Inacio coming out. Inacio in fact came out of the shutter. Though according to P.W. 1 Felix the shutter was opened for Inacio, yet according to P.W. 6 Mahesh, the shutter was slightly open through which inacio came out. He does not at all speak of the shutter being opened by somebody and Inacio coming out. If the shutter was slightly opened and Inacio could sneak out of the said opening the appellant could have also come out of the said opening. 16. The prosecution case is that a sum of Rs. 750/- which was removed by the appellant from the counter of the bar was recovered from his pocket. In the F.I.R. the complainant Felix (P.W. 1) has not reported in respect of the removal of any cash from the counter. He stated that after the appellant was unarmed the police checked everything including the counter and at that time it was noticed that cash of Rs. 750/ - was missing. No evidence has been led by the prosecution to show that the cash was removed from the counter. On the contrary, out of the cash of Rs. 750/- recovered from the appellant. P.W. 4 Inacio claims that Rs. 200/- was removed by the appellant from his pocket. Of course even Inacio had not stated be fore the police that the said amount has been removed from his pocket. Though P.W. 1 Felix states that he had reported of the missing cash in F.I.R. yet the same docs not figure in F.I.R. 17. There is also major discrepancy regarding the manner in which the appellant was caught after opening the shutter and the removal of knife from his hand. According to P.W. 1 Felix, after the shutter was opened the appellant was standing with the knife in his hand and the police on seeing the knife in his hand, threw the same out by beating a stick on the same. Likewise, Mahesh (P.W. 6) also states that the police put stick on the hand of the appellant and made him to drop the knife. However, the story which is told by the police constables who caught the appellant is altogether different. According to P.W. 2, they had told the appellant to give the knife and they held him by force and took away the knife from him. He further states that "We caught the accused from behind. However, the story which is told by the police constables who caught the appellant is altogether different. According to P.W. 2, they had told the appellant to give the knife and they held him by force and took away the knife from him. He further states that "We caught the accused from behind. At first we caught his hand in which he had this knife. The accused was caught by PC 4178". P.W. 7. on the other hand, states that "Vilas Gaus caught the accused from right side while I caught him from the left side," and it was Gaus who removed the knife from the hands of the appellant. 18. The prosecution case consistently is that when the shutter was opened for Inacio (P.W. 4) to come out, the appellant was still holding the knife in his hand and after about an hour when the police reached and opened the shutter, the appellant was still holding knife in his hand. This aspect of the prosecution case is highly improbably and it does not sound to reason that the appellant would continue to hold the knife in his hand till he was taken out of the bar with the police help. 19. Even though there is evidence on record that there were other customers present at the time of the incident and, according to Inacio (P.W. 4), there was another waiter present at the time of the incident, the prosecution has not chosen to produce any of the said persons who could have thrown light on the prosecution case. Witness Antonio Manuel D'Souza and Pandu Naik, the other waiter who are stated to be eye -witnesses were not examined by the prosecution. 20. Report (Exh. P.W. 10/8) shows that ethyl alocohol detected in stomach, intestine, liver. kidney spleen, lung and brain of deceased as also in his blood was 207 mg/ 100 ml. which shows that he was heavily drunk. The appellant was also drunk. Prosecution case is that they did not drink at all in the bar of Felix (P.W. 1). It appears that the genesis of crime has been suppressed in this case and we find it rather difficult to believe the prosecution case. 21. In view of the above discussion and the material discrepancies in the prosecution evidence on the material particulars of the incident in question, we are of the opinion that the Learned Addl. It appears that the genesis of crime has been suppressed in this case and we find it rather difficult to believe the prosecution case. 21. In view of the above discussion and the material discrepancies in the prosecution evidence on the material particulars of the incident in question, we are of the opinion that the Learned Addl. Sessions Judge was not justified in law in recording conviction of the appellant in the set of evidence which was placed on record by the prosecution. The prosecution, in our opinion had failed to prove the charge against the appellant beyond reasonable doubt and, at any rate, the benefit of doubt must go to the appellant. Accordingly the conviction and sentence passed by the Learned Addl. Sessions Judge. Margeo, cannot be sustained and are hereby set aside. The appeal is allowed and the appellant is ordered to be set at liberty forthwith in case he is not required in any other case. Appeal allowed.