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2005 DIGILAW 573 (GAU)

Kipa Sero v. State of Arunachal Pradesh

2005-08-09

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. This Criminal Appeal under Regulation 27 of the Assam Frontier (Administration of Justice) Regulations, 1945, read with Section 374(3) and 482, Code of Criminal Procedure, is directed against the judgment and order dated 3.9.2004 passed by the learned Additional District and Sessions, Fast Track Court, West Zone, Yupia, Papum Pare District, Arunachal Pradesh, in Sessions case No. 230/2002 (FTC) corresponding to GR Case No. 8/92, by which the accused-Appellant was convicted under Sections 326/333/308, IPC, and sentenced him to undergo RI for four years with fine of Rs.17,000.00 for the offence committed under Section 333, IPC and in default to undergo SI for two years and to pay a fine of Rs.2,000.00 for the offence committed under Section 308, IPC. Further, a sum of Rs.15,000.00 has also been awarded as compensation to be paid to the victim Shri Tallo Jarjo, Sub-Inspector of Police, who has injured in the incident. 2. On the basis of an FIR lodged by one Sri Bang Tangzang, Sub-Inspector of Police, Naharlagun Police Station, the Naharlagun P.S. Case No. 12/91 under Sections 326/333/308/34, IPC, was registered which eventually culminated to GR Case No. 8/92 under Sections 326/333/308, IPC, and subsequently to Sessions Case No. 230/2002 (FTC). 3. As per the story narrated in the FIR, the informant along with some other police personnel (13 numbers) had visited the house of the accused-Appellant in search of one Shri Lakhan Paswan who involved in Naharlagun P.S. Case No. 11/91 under Sections 354/448/325, IPC. When the police party reached the house of the accused-Appellant, the accused-Appellant and his wife obstructed the police personnel from entering the house and the accused-Appellant took out a knife (home made dagger) and injured two police personnel, namely Shri Tallo Jarjo, and Shri K. Ronya, both Sub-Inspector of Police. While Shri Jarjo received grievous injury, Shri Ronya received simple injury. 4. In due course the police submitted charge sheet against the accused-Appellant. It appears that although in the FIR allegations against the wife of the accused-Appellant were also made to the effect that she along with her husband, the accused-Appellant, obstructed the police personnel, but such allegation against the wife of the accused-Appellant was not pursued and no charge sheet was submitted against her. Although Section 34, IPC, was added at the time of registration of the Police Case, later on Section 34, IPC, was dropped. Although Section 34, IPC, was added at the time of registration of the Police Case, later on Section 34, IPC, was dropped. However, there is no explanation as to why the allegations against the wife of the accused-Appellant were dropped. 5. As per the FIR lodged, the occurrence took place on 10.2.91 at night about 20.35 hours. After submission of the charge sheet the case proceeded only against the accused-Appellant. The prosecution examined altogether 11 witnesses, while the accused-Appellant examined 5 witnesses. In the statements of the accused-Appellant recorded under Section 364, Code of Criminal Procedure, the accused-Appellant denied the commission of offence. In his statement to Question No. 5 "Do you want to say anything before the Court and do you want to bring anymore defence witness? The accused-Appellant answered thus "I am an innocent. They came at about 8.30 P.M. The police personnel broke the door of my house at the time of incident. I was sleeping with my daughter. The light was broken by the police, TV was also broken by the Police. I had a tussle with the police personnel. The police hit me by a lathi in my head. Blood came out of my head. I have not inflicted. The case is long pending, hence I pray to the Court to dismiss the case." 6. As per the injury report furnished by the Medical Officer of the General Hospital, Naharlagun, PW-10, while Shri T. Jarjo received grievous injuries, Shri K. Ronya received simple injuries. As per the injury report Shri T. Jarjo received injuries on his forearm and chest. The Doctor who examined the injured was examined as P.W. 10. In reference to the injury report, in her deposition, she described the injuries sustained by Shri T. Jarjo as follows: (1) First penetrating injury upper and middle 1/3 of junction left forearm aspect on its side though the inferuoua space. Usual aspect of its medulateral aspects. (2) Penistum also injured on the aspect. It's length about 1/2 inches. The wound of entry is about 1.5 c.m. low aspect and 1 cam whole thickness of forearm about 5 inches of left point wound of exit at its aspect 2 c.m. x 1 c.m. and whole thickness upto thin about 4 c.m. above the left point. (3) Chest oblique incised wound 3 c.m. x 5 c.m. x 2 c.m. in 8 aspect in the mid evcupular repire. (3) Chest oblique incised wound 3 c.m. x 5 c.m. x 2 c.m. in 8 aspect in the mid evcupular repire. (4) Right wrist varsal aspect on its medical aspect transp. Incised wound near the process of the alma whole is about 2 c.m. x 1 c.m.. As regards the injury sustained by the other injured person Shri K. Ronya, she in her deposition stated in reference to the injury report that she found an incised wound on the right forearm about 3" x 1" x 1" and that the same was a simple injury. She has proved the injury report as Exts. 1 and 2. 7. On the basis of the depositions made by the prosecution witnesses who are all police personnel except P.W. 10, the Doctor, who examined the injured persons, and by disbelieving the defence witnesses on the ground that they all are relations of the accused-Appellant, the learned trial Court has held the accused-Appellant guilty of the aforesaid offence and convicted and sentenced him as aforesaid. 8. Mr. T. Son, learned Counsel for the Appellant, assailing the legality and the validity of the impugned judgment convicting and sentencing the accused-Appellant, referring to the evidence on records submitted that the prosecution miserably failed to prove the guilt against the accused-Appellant. He submitted that it was highly improbable that the accused-Appellant could inflict the injuries as alleged, while altogether 13 police personnel visited his house in search of an accused person in connection with another police case. He submitted that the police personnel entered the house of the accused-Appellant at night without any search warrant in violation of the provisions of Sections 100 and 165(4), Code of Criminal Procedure Pointing out to the alleged infirmities in conducting the case by the prosecution by not producing the seized articles including the weapon allegedly used by the accused-Appellant towards inflicting the injuries to the two police personnel, Mr. Son submitted that it is a fit case for acquittal of the accused-Appellant. 9. The learned P.P., Arunachal Pradesh, on the other hand, submitted that the evidence on records of the case are overwhelming so as to establish the guilt of the accused-Appellant. He submitted that the learned trial Court duly appreciated the evidence on record towards conviction of the accused-Appellant and there is no infirmity in the same. 9. The learned P.P., Arunachal Pradesh, on the other hand, submitted that the evidence on records of the case are overwhelming so as to establish the guilt of the accused-Appellant. He submitted that the learned trial Court duly appreciated the evidence on record towards conviction of the accused-Appellant and there is no infirmity in the same. As regards the non-production of seized materials including the most important article, i.e., the knife which was allegedly used by the accused-Appellant to inflict the injuries, he submitted that such non-production of the seized articles would not be fatal to the case of the prosecution. 10. The learned trial Court on the basis of the materials on records formulated the following points for decision: Points For Decision Now the points for decision in this case are: (i) Whether accused Kipa Sero deterred the Police personnel from arresting Shri Lakhan Paswan, while the police officials were acting in discharge of their duties as a result, Sl. T. Jarjo and Sl. K. Ronya sustained grievous knife/dagger cut injuries inflicted voluntarily by accused Kipa Sero. Thereby accused Kipa Sero committing an offence punishable under Sections 333/326, IPC. (ii) Whether accused Kipa Sero committed an act, causing grievous injuries to Sl. T. Jarjo and Sl. K. Ronya and the said act was committed in such circumstances with intention or knowledge to commit culpable homicide not amount to murder. Thereby committing an offence punishable under Section 308, IPC. 11. The learned trial Court after considering the depositions made by the prosecution witnesses and effect of the cross-examination believed the case of the prosecution and convicted and sentenced the accused-Appellant on that basis. It disbelieved the statements made by 5 defence witnesses on the ground that all of them were interested witnesses. It was argued on behalf of the accused-Appellant that if the defence witnesses were all interested witnesses, the prosecution witnesses being the police personnel were also equally interested witnesses. According to the learned Counsel for the Appellant, such a plea cuts both ways. 12. I now proceed to examine the evidence on records so as to appreciate the submissions made by the learned Counsel for the parties. As stated above, the prosecution examined as many as 11 witnesses and except P.W. 10, the Doctor who examined the injured persons, all other witnesses examined by the prosecution are all police personnel who were present in the place of occurrence. As stated above, the prosecution examined as many as 11 witnesses and except P.W. 10, the Doctor who examined the injured persons, all other witnesses examined by the prosecution are all police personnel who were present in the place of occurrence. The four defence witnesses (D.W. 1 to 4) are the family member of the accused-Appellant except D.W. 5, who is a neighbour of the accused-Appellant. P.W. 1 in his deposition has clearly stated that he did not see the accused-Appellant inflicting the injuries to Shri T. Jarjo and Shri K. Ronya. P.W. 2, another police personnel, in his deposition stated that Shri T. Jarjo was hit in the stomach. According to him, both the injured police personnel were taken to the hospital by the other police personnel. He is also not an eye witness. However, he stated that he heard shouting of Shri T. Jarjo that he was being assaulted. However, he did not state that as to who assaulted Shri T. Jarjo. 13. P.W. 3 in his deposition stated that the police personnel first opened blank fire in the air for the purpose of arresting Shri Lakhan Paswan who was allegedly taking shelter in the house of the accused-Appellant. According to him, the victim Sl. Shri T. Jarjo caught hold of the accused-Appellant who in turn took out the hidden knife and stabbed him. But contrary to the injury report and deposition of other witnesses, P.W. 3 stated that Shri T. Jarjo was injured by the knife in his stomach. This witness did not give any statement before the Investigating Officer. 14. P.W. 4, another police personnel, although in his deposition stated that he heard about the injury inflicted by the Appellant but he did not remember whether it was in the right hand or left hand. In cross-examination, he stated that he did not see the accused-Appellant inflicting the injuries. 15. P.W. 5 also stated in his deposition that the accused-Appellant was holding a knife with which he inflicted stab injuries to the two police personnel. But in cross-examination he could not identify the knife which was never produced before the Court. In his cross-examination, he further stated that he did not know as to the nature of the injuries sustained by the police personnel as he was busy in escorting the accused to the Police Station and later on he had gone to the hospital. 16. In his cross-examination, he further stated that he did not know as to the nature of the injuries sustained by the police personnel as he was busy in escorting the accused to the Police Station and later on he had gone to the hospital. 16. P.W. 6 in his deposition stated about the injuries inflicted on the two police personnel but he did not state as to who inflicted the injuries. According to him, some of the police personnel went to the hospital taking the injured persons. He stated about the seizure of one local made dao. He also stated about the seizure of one khaki colour blood stained shirt worn by Sl. Shri T. Jarjo and two jackets. In cross-examination, this witness stated that he was not inside the house but was out side. He did not know the name of the accused-Appellant. He further stated that he had not seen the accused-Appellant inflicting the injuries. 17. P.W. 7, another police personnel, contrary to the depositions made by the other police personnel stated about the alleged beating of the police personnel by the accused-Appellant with a lathi. He also stated that the accused-Appellant broke the electric bulb. According to him, when the police personnel were about to grab the accused-Appellant, he heard yelling that the accused-Appellant had stabbed. In his cross-examination this witness stated that when the accused-Appellant started beating the police personnel with lathi. He heard the yelling of Shri T. Jarjo. If that be the case, there could not have been any occasion for the accused Appellant to inflict staf injury to Sl. T. Jarjo. This witness stated in his depositions that he heard the yelling of Shri T. Jarjo that he had been stabbed. If the accused-Appellant was in front of him and he heard the yelling of Sl. Shri T. Jarjo then it could not have been the accused-Appellant who could inflict injury to Sl. Shri T. Jarjo. Contrary to the depositions made by other P.Ws., that the injuries sustained by the police personnel were in the stomach, chest and forearm, this witness stated that Sl. T. Jarjo was stabbed in the back. 18. P.W. 8 (the complainant) in his deposition stated about the blank firing by the police personnel in the air. According to him, the police personnel forcefully opened the door of the house of the accused-Appellant and entered inside the house. T. Jarjo was stabbed in the back. 18. P.W. 8 (the complainant) in his deposition stated about the blank firing by the police personnel in the air. According to him, the police personnel forcefully opened the door of the house of the accused-Appellant and entered inside the house. When the Sl. Shri T. Jarjo caught hold of the accused-Appellant then he allegedly took out the hidden knife and stabbed Shri T. Jarjo. This witness stated that it was he who had taken Shri T. Jarjo to hospital. He also stated that the injury was inflicted on Shri T. Jarjo. This witness also did not give any statement before the Investigating Officer. He in his deposition stated that the accused-Appellant revolted against the police personnel. He did not state as to whether he himself saw the accused-Appellant inflicting injuries to the two police personnel. This witness also stated that the injured police personnel were taken to the hospital for treatment. 19. P.W. 9, Sl. Shri T. Jarjo is the injured police personnel who received grievous injuries. He in his deposition stated that the injuries were inflicted by the accused-Appellant. According to him, he was taken to the hospital by other police personnel. Although the injuries were allegedly inflicted by the accused-Appellant with his knife, yet he stated in his deposition that the seized weapon was not produced before the Court. The other injured police personnel was not examined by the prosecution. 20. P.W. 10, the Doctor who had examined the injured persons about whom mention has been made above, stated in her deposition that the injured persons came to the hospital of their own. Unlike the P.Ws. who stated that the injured were taken to the hospital by other police personnel, the P.W. 10 stated that the injured police personnel had come to the hospital of their own. In her cross-examination also she clearly stated that the injured persons came to the hospital without any police escort. 21. P.W. 11, the Investigating Officer, in his depositions stated that during the investigation he had seized a knife from the possession of the accused-Appellant. Although he stated about the seizure list mentioning the seizure of the weapon, a khaki colour shirt with blood stains and two jackets, the seized materials were not produced before the Court. 22. As against the aforesaid version of the P.Ws., all the D.Ws. Although he stated about the seizure list mentioning the seizure of the weapon, a khaki colour shirt with blood stains and two jackets, the seized materials were not produced before the Court. 22. As against the aforesaid version of the P.Ws., all the D.Ws. in their depositions described a different story. They all stated as to how the police personnel came and broke open the doors of the house of the accused-Appellant, beat the accused-Appellant and took him away. According to them, the accused-Appellant was not informed of anything and that he did not carry any dao or knife. Confirming the opening of blank fire by the police personnel, they stated as to how the wife of the accused-Appellant got injured due to such firing and became unconscious. 23. D.W. 1 who is the daughter of the accused-Appellant stated that the injuries sustained by the police personnel were caused by sharp bamboo sticks inside the house with which an almirah was being constructed. She firmly stated that there was no electricity. In her cross-examination she confirmed about non-availability of electricity in the house and as to how the police personnel broke the TV and electric bulb. In her cross-examination she confirmed that her mother became unconscious. 24. D.W. 2 is the wife of the accused-Appellant. She in her deposition stated about the police firing in which she got injured. She also stated about the police personnel breaking open the door of the house. According to her, the accused-Appellant was sleeping and he did not carry any weapon. She confirmed about the injuries sustained by her due to police firing and as to how she had to be hospitalized. According to her, the injuries sustained by the two police personnel were caused by "kobe" a local made almirah of sharp bamboo sticks. She also stated that seized dao was not produced before the Court. In her cross-examination, she stated that she sustained injuries in her eyes. 25. D.W. 3 is the neighbour of the accused-Appellant and he corroborated the deposition made by D.W. 2. He also stated that the accused-Appellant did not carry any dao. According to him, the police personnel might have got injured from the new bamboo sticks under use for making the "kobe", a home made almirah. He confirmed that the dao allegedly seized by the police was not produced before the Court. 26. He also stated that the accused-Appellant did not carry any dao. According to him, the police personnel might have got injured from the new bamboo sticks under use for making the "kobe", a home made almirah. He confirmed that the dao allegedly seized by the police was not produced before the Court. 26. D.W. 4 is the sister of the accused-Appellant who confirmed the statements made by other D.Ws. and so also by the D.W. 5 who is also a neighbour of the Appellant. 27. The learned trial Court on the basis of the aforesaid evidence on records has come to the conclusion that the accused-Appellant was responsible for inflicting the injuries and accordingly convicted and sentenced him. The learned trial Court's judgment and order under challenge before this Court has been rendered after about 13 years of the alleged incident. The learned trial Court believed the depositions made by P.Ws. and has held that the deposition made by the D.Ws. could not be believed as they are all interested witnesses being related to the accused-Appellant. The learned trial Court, however, failed to appreciate that at least one of the D.Ws. was not related to the accused-Appellant. Likewise, D.W. 3 also was not an inmate of the house in which the incident occurred, but was a neighbour. The trial Court disbelieved this witness only on the ground that he is the clan brother of the accused-Appellant. No cogent reasons have been assigned as to why the depositions made by the D.Ws. could not be believed. The learned trial Court after discussing the defence evidence held that there are contradictions without, however, discussing anything as to what are the contradictions. 28. As regards the injuries sustained by the two police personnel, it was the definite case of the defence that such injuries were sustained by the victim with the exposed sharp bamboo sticks under use in making the "kobe". However, the learned trial Court has not discussed anything about this aspect of the matter. 29. The proof of charge which is to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by isolated scrutiny. It is the settled principle of criminal jurisprudence that the view favourable to the accused should be adopted. 29. The proof of charge which is to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by isolated scrutiny. It is the settled principle of criminal jurisprudence that the view favourable to the accused should be adopted. It is also settled principle of criminal trial that equal treatment be given to the evidence of prosecution and the defence. A strong suspicion cannot be the basis of conviction going by the requirement of proof in a criminal case. 30. In the instant case, the learned trial Court while brushing aside the testimony of the evidence adduced by the D.Ws. accepted the same in respect of P.Ws. Going by the circumstances involved in the case, if the D.Ws. were interested witnesses same is also equally applicable to the P.Ws. who are police personnel and entered the house of the accused-Appellant at night without any search warrant. All the P.Ws. in their depositions have categorically stated that they entered the house of the accused-Appellant without any search warrant. On reading of the depositions made by the P.Ws., it appears that there are inherent contradictions. 31. It is hard to believe that 13 police personnel engaged in raiding the house of the accused-Appellant and who resorted to blank firing could be meted out with the kind of threat who by the accused-Appellant as alleged by them. No doubt it is true that a strong suspicion exists against the accused-Appellant but as stated above, such suspicion cannot be the basis of conviction, more so, going by the standard of proof required in a criminal case. There is no explanation from the prosecution side about the injuries sustained by the wife of the accused-Appellant. It gives rise to a strong suspicion about the case of the prosecution, more so, when by the conduct of the police personnel, the wife of the accused-Appellant received injuries for which she had to be hospitalized. 32. According to the accused-Appellant and the D.Ws., scuffle took place between the accused-Appellant and the police personnel and in the process not only the two police personnel received injuries but the wife of the accused-Appellant also received injuries. While the prosecution case is that such injuries were inflicted by the accused-Appellant with a knife according to the D.Ws. version such injuries were sustained by the two police personnel from sharp bamboo sticks. While the prosecution case is that such injuries were inflicted by the accused-Appellant with a knife according to the D.Ws. version such injuries were sustained by the two police personnel from sharp bamboo sticks. Such a stand on the part of the D.Ws. coupled with the fact that none of the seized articles including the most important article, i.e., the knife or dao, with which the accused-Appellant inflicted injured were not produced and proved before the trial Court, gives rise to strong suspicion to the prosecution case. 33. The inherent contradictions in the depositions of the P.Ws. have been noted above. This coupled with the fact that the incident occurred at night also gives rise to a strong suspicion. The contradictions in the depositions of the P.Ws. stare on the face of it. Although all the P.Ws. stated that they were present at the site when the incident occurred but they have given different version regarding injuries sustained by the victims. All of them have admitted that it was dark and if that be so, it is not understood as to how they could definitely say about the incident and inflicting the injury by the accused-Appellant. Contrary to their statements that the victims were shifted to the hospital by them, the P.W. 10 who examined the injured persons, stated in her deposition stated that the victims came to the hospital of their own without being accompanied by any police personnel. 34. The prosecution also did not prepare any site plan mentioning the detail particulars. Coupled with this, the manner of occurrence as deposed by the P.Ws. is at variance than what was stated in the FIR. Two of the P.Ws. although were present at the site did not make any statement during the investigation and yet they deposed during the trial. It is true that while normal discrepancies do not corrode the credibility of the party's case, the material discrepancies do as in the case in hand. 35. All the police personnel have shown extra ordinary enthusiasm in the matter somehow to confirm commission of the offence by the accused-Appellant. This will have to be appreciated in the given circumstances of the case. All the police personnel numbering 13 broke open the door of the house of the accused-Appellant at night and two of them received injuries. 35. All the police personnel have shown extra ordinary enthusiasm in the matter somehow to confirm commission of the offence by the accused-Appellant. This will have to be appreciated in the given circumstances of the case. All the police personnel numbering 13 broke open the door of the house of the accused-Appellant at night and two of them received injuries. It is highly improbable that the accused-Appellant could inflict injuries overpowering 13 police personnel. Either of the stories, i.e., sustaining of injuries due to scuffle between the police personnel and the accused-Appellant or sustaining injuries from the sharp bamboo sticks cannot be said to be highly improbable. The presumption of innocence in favour of the accused-Appellant gets stronger on the basis of the evidence on record and inherent contradictions thereof. 36. Apart from the fact that the seized articles, most importantly, the weapon allegedly used by the accused-Appellant was not produced, the signature of the accused Appellant was also not obtained in the seizure list. No explanation is forthcoming as to why the signature of the accused-Appellant was not obtained in the seizure list. The accused-Appellant is also entitled to the benefit of doubts in absence of any site plan prepared by the police about which a mention has been made above. 37. The learned trial Court has ignored the evidence of D.Ws. without any basis. There is no manner of doubt that like any other witness, the defence witness has to be tested on the touch stone of reliability, credibility and trust worthiness, but at the same time their evidence cannot be brushed aside merely because they are related to the accused-Appellant. Relationship is not a factor which affects the credibility of a witness. Foundation has to be laid, if the plea of interested witness is to be met, which is missing in the instant case. 38. In the case of Mohd. Aman and Anr. v. The State of Rajasthan 1997 CriL.R. (SC) 452, the Apex Court noticing that the seized articles which could be the best evidence in the proof of the claim of seizure having not been produced and exhibited during the trial was fatal to the prosecution case. 38. In the case of Mohd. Aman and Anr. v. The State of Rajasthan 1997 CriL.R. (SC) 452, the Apex Court noticing that the seized articles which could be the best evidence in the proof of the claim of seizure having not been produced and exhibited during the trial was fatal to the prosecution case. In the instant case also apart from non-production of the most important article, i.e., the dao or knife, allegedly used by the accused-Appellant coupled with the defence version that the injuries were sustained by the victims from the sharp bamboo sticks makes the prosecution weak. 39. In the case of Kallikatt Kunhu v. State of Kerala AIR 2000 SC 1235 , the eye witnesses stated that the dagger was used to inflict injuries upon the deceased. However, the Apex Court found that if that be so, the dagger could not have been enclosed in a sheath. It should have been found unsheathed and ought to have some blood stains. Under those circumstances, the Apex Court held that the same strongly probabilised the version put forward by the Appellant that the incident did not take place in the manner narrated by the prosecution witnesses. It was observed by the Apex Court that if the dagger was not used to inflict injuries there was no weapon of offence produced before the learned trial Court. 40. In the instant case also apart from the fact that the seized articles were not produced, most importantly the weapon allegedly used by the accused-Appellant, it is also not the case of the prosecution that there were blood stains. All these factors have rendered the prosecution case highly improbable. As observed above, no amount of suspicion, howsoever, strong it may be can lead to any conviction. In the instant case also there might be suspicion about the conduct of the accused-Appellant, but at the same time having regard to the fact that there is inherent contradictions in the prosecution case coupled with the fatal discrepancy of non-production of the seized articles, more importantly, the dao or knife allegedly used by the accused-Appellant has made the prosecution case weak. In such circumstance, it cannot be said that the offence allegedly committed by the accused-Appellant has been proved beyond reasonable doubt. 41. The learned trial Court simply believed the prosecution case unmindful of the inherent contradictions in the depositions made by the P.Ws. In such circumstance, it cannot be said that the offence allegedly committed by the accused-Appellant has been proved beyond reasonable doubt. 41. The learned trial Court simply believed the prosecution case unmindful of the inherent contradictions in the depositions made by the P.Ws. At the same time it did not take into account the inherent discrepancy in the prosecution case by not producing seized articles, most importantly, the dao or the knife. It also simply brushed aside the defence version and the depositions made by D.Ws. The statement made by the accused-Appellant under Section 364, Code of Criminal Procedure, as quoted above, clearly corroborated the evidence of the D.Ws. 42. For the foregoing reasons and discussions, I have no hesitation to hold that the prosecution has failed to establish the case against the accused-Appellant beyond all reasonable doubt. Consequently, the accused-Appellant deserves acquittal. 43. In view of the above, the impugned judgment and order convicting and sentencing the accused-Appellant is not sustainable and liable to be set aside and quashed. The appeal stands allowed and the accused-Appellant is discharged from the charges. Appeal allowed.