Judgment ( 1. ) THIS is an appeal by the appellant against his conviction under Section 307, Indian Penal Code, 1860 (hereinafter referred to as ipc for short) and sentence of 4 years Rigorous Imprisonment plus fine of Rs. 1000/- and in default 6 months Rigorous Imprisonment. ( 2. ) PROSECUTION case in brief was that on 15-12-1990 at about 9 a. m. appellant assaulted Rajendra Santlani and caused knife injuries. This was done to take revenge, as the victim as Manager of Indian Oil Depot, Ratlam was instrumental for the dismissal of the appellant as driver of private oil tanker. According to prosecution story, on the day of incident, when Rajendra Santlani was on his way to the depot on his scooter, the appellant sprang from behind a wall and gave fist blows. As result Rajendra fell down, thereafter, appellant caused knife injuries to him in the thigh, on his knee and abdomen below the costal line. Rajendra was taken to the District Hospital. Incident took place near GRP Station in the Railway Yard and was reported by GRP Constable babu Katiyar that somebody stabbed Rajendra on the road, therefore, radheshyam Tewari ASI GRP, went to hospital, where he recorded the statements of Ashok Kumar, Prabhkar and Anwar. He also received intimation from the doctor on the basis whereof he recorded the Dehati Nalishi at 12. 15 in the afternoon and for its registration forwarded to the GRP Station on which fir (Ex. P-3 ). After completing the investigation, charge-sheet was filed against the appellant and he was put up for trial. At trial, appellant abjured his guilt and submitted that he has been falsely implicated. The learned Sessions judge, on the basis of prosecution evidence, found the appellant guilty of having committed offence punishable under Section 307, accordingly convicted and sentenced him as mentioned above. ( 3. ) THE present appeal was set down for hearing on various dates and despite names of the Counsels being duly reflected in the cause list none had appeared to argue the appeal. Therefore, in the light of principle of law laid down in the decision of the Supreme Court in Bani Singh Vs. ( 3. ) THE present appeal was set down for hearing on various dates and despite names of the Counsels being duly reflected in the cause list none had appeared to argue the appeal. Therefore, in the light of principle of law laid down in the decision of the Supreme Court in Bani Singh Vs. State of U. P. , (1996) 4 SCC 720 , instead of dismissing the appeal in default, the entire evidence as recorded by the Trial Court was perused and examined in the light of the grounds raised in the Memo of appeal for the decision of the appeal on merit. ( 4. ) SHRI A. Salim, learned Penal Advocate, appearing for the State supported the judgment of the Trial Court and submitted that no interference is warranted with the conviction and sentence of the appellant. According to him testimony of Rajendra is sufficient to maintain the conviction of the appellant. ( 5. ) SURPRISINGLY, looking to the time and place of incident, there is no eye-witness account of the same. A close scrutiny of prosecution evidence shows that whole prosecution case hovers around the version of incident as given by the Rajendra Santlani (P. W. 12 ). As per the evidence of P. W. 12, after he sustained stabbed injury, he was taken to the Company depot by unknown cyclist. At depot, Rajendra told Anwar, Patil and Ashok Kumar that appellant was the assailant. Thereafter Ashok Kumar took him to Mehra Hospital. After the first aid he was referred to District Hospital, Ratlam. In order to reach district Hospital, Rajendra (P. W. 12) sent for his car through driver Tipu who took him to the District Hospital. In District Hospital initially Dr. Shah treated rajendra to whom he told that the appellant was the assailant. All along rajendra was in senses. Basically relying on the evidence of Rajendra and R. Gopinathan Nair (P. W. 8) the learned Trial Court returned the verdict against the appellant and convicted him. Now the question is whether the story as put forth by Rajendra (P. W. 12) inspires confidence or in other words, does other evidence to convict the appellant duly corroborates Rajendras evidence. ( 6. ) PROSECUTION did not examine any member of the Staff of the mehra Hospital where Ashok Kumar first took Rajendra or Dr. Shah who first treated the Rajendra in the District Hospital. ( 6. ) PROSECUTION did not examine any member of the Staff of the mehra Hospital where Ashok Kumar first took Rajendra or Dr. Shah who first treated the Rajendra in the District Hospital. Ashok Kumar was examined as p. W. 3. He did not support the prosecution in material particulars, therefore, he was declared hostile by the prosecution. His evidence is therefore of no use. Similarly Anwar (P. W. 2) did not support the prosecution case, he too, therefore was declared hostile. According to Rajendra these two witnesses were the persons who initially came in contact with the appellant at the depot when unknown cyclist took him there and told them about the identity of the appellant. If Rajendra had really told Ashok Kumar, who is an employee of the depot, the identity of assailant, he would definitely disclose the identity in his deposition in Court. Non-disclosure of identify by Ashok Kumar creates a doubt in the mind. ( 7. ) ACCORDING R. Gopinathan Nair (P. W. 8) he was posted and working in depot as Operation Officer. On the date of incident he had reached the depot before the arrival of Rajendra in injured condition and he was not in position to tell the name of his assailant. This witness further stated that he visited the hospital in the evening at that time also Rajendra was not in a position to speak. After about two three days of incident, Rajendra told this witness that the appellant was the assailant. ( 8. ) IF the testimony of P. W. 8 is examined in the light of evidence of rajendra (P. W. 12), it is crystal as daylight, that one of these witnesses is not telling the truth. According to Rajendra (P. W. 12) he was in his full senses not only in Mehra Hospital but also in the District Hospital where he was taken after 10-15 minutes. Dr. S. G. Lad (P. W. 6) who examined Rajendra in the district Hospital also says in his evidence that Rajendra was fully conscious and his pulse rate was 90 per minute and blood pressure 130/80. Obviously p. W. 8 is trying to cover up the late recording of his case dairy statement by attributing that Rajendra was unable to tell him the name of assailant for two three days after the incident. Dr. Obviously p. W. 8 is trying to cover up the late recording of his case dairy statement by attributing that Rajendra was unable to tell him the name of assailant for two three days after the incident. Dr. Lad (P. W. 6) was categorical in deposition that Rajendra did not disclose the identity when his wife Sunita brought him to the hospital. Thus the evidence of P. W. 8 and P. W. 12 loses further credibility. The Evidence of Tipu (D. W. l)provides the proverbial last straw on the prosecution that finishes the prosecution case. ( 9. ) UNDISPUTEDLY at Mehra Hospital, Rajendra had asked Tipu to fetch car from formers home in order to reach District Hospital and Tipu did bring the car. No loving and sensible wife would retain her poise and cool if within minutes of her seeing off her husband to work, is asked to hand over car keys to the driver so that her injured husband could be taken to the hospital. Even in panic and anxiety well being of the husband would be upper most thought in her mind. Naturally, she would like to see her husband at the first available opportunity. As per evidence of Tipu (D. W. 1), Rajendras wife sunita also accompanied him to the District Hospital and Rajendra told her that two or three unknown persons had attacked him. It is improbable that rajendra despite knowing the identity of assailant would not disclose the same to his wife, when she must have asked him in this regard. Presence of Sunita at the District Hospital is also established from the evidence of Dr. Lad (P. W. 6 ). Why, then, Rajendra is conspicuously silent about presence of his wife sunita at the District Hospital and why she was not examined as witness ? obviously because the victim was not aware of identity of his assailant either at time of incident or when he was brought to the District Hospital which was starting point of the investigation conducted by Radheshyam Tewari (P. W. 15 ). Another circumstance on which prosecution relied is the so-called recovery of knife at the instance of the appellant. This is also of no consequence in view of the seizure witnesses Bihari (P. W. 7) and Aloopi Verma (P. W. 9) have denied any seizure in their presence. Apart from these witness, others are formal witnesses. Another circumstance on which prosecution relied is the so-called recovery of knife at the instance of the appellant. This is also of no consequence in view of the seizure witnesses Bihari (P. W. 7) and Aloopi Verma (P. W. 9) have denied any seizure in their presence. Apart from these witness, others are formal witnesses. In view of the above discussion, I find that the entire prosecution is so weak and shaky that it is quite unsafe to convict the appellant. ( 10. ) I, thus, find that there is no convincing proof on record to connect the accused with the injury, if any, suffered by Rajendra and that he and he alone give a knife blow in the stomach of the deceased. ( 11. ) FROM the above discussions, I am clearly of the view that the conviction and sentence of the appellant can not be sustained. The appeal is, therefore, allowed. The conviction and sentence rendered by the Trial Court are hereby set aside. The fine, if paid, be refunded to the accused. Bail bond, furnished by the appellant and surety are hereby discharged. Criminal Appeal allowed.