Judgment ( 1. ) THE appellant has preferred this appeal under Section 374 (2) of the Cr. P. C. against his conviction under Section 307 of IPC for three years R1 with fine of Rs. 500 in default for further six months RI passed by the Sessions Judge, Sehore in Sessions Trial No. 139/88, vide judgment dated 31. 7. 1990. ( 2. ) AS per case of the prosecution the victim Quess being servant of Ziyauddin, resident of village Takiya, went to gross field on 13. 7. 88 for grazing the cattle of his employer. At about 12 -12. 30 p. m. the victim was asked by the appellant not to graze the cattle for Nizamuddin instead he should work for him. Quess denied the same. On account of this altercation the appellant had given various blows of knife to him. Resultantly he received injuries on his chest, abdomen and back. On asking by Kutubuddin not to do such tiling then he was also subjected to abuse and criminal intimidation by appellant. Then Kutubuddin came to his residence and informed to his father Jiyauddin they went to the place of incident, at about 5 oclock in the evening and brought to victim in village. Thereafter, the FIR was lodged at Police Station Doraha. The same was sent to police Station Ahmadpur as the incident took place in the territorial jurisdiction of such Police Station. On lodging the report the injured was sent to Primary Health Centre, Shyampur for examination and treatment, where his MLC was prepared and on advice the X-ray was taken in which some complications were found in his person. Then, he was shifted to Hamidiya Hospital, Bhopal for further treatment where he was operated after admission. On holding investigation the appellant was charge-sheeted under Section 307 of IPC. ( 3. ) ON committal, the sessions court has framed the charges against the appellant under Section 307 of IPC. The same was denied by him. In order to prove the case the prosecution has examined as many as sixteen witnesses while no-one has been examined on behalf of the appellant in his defence. On appreciation of evidence, the appellant was found guilty under Section 307 of IPC and sentenced as stated above, hence this appeal is preferred at the instance of the accused-appellant. ( 4. ) MR. On appreciation of evidence, the appellant was found guilty under Section 307 of IPC and sentenced as stated above, hence this appeal is preferred at the instance of the accused-appellant. ( 4. ) MR. K. N. Fakhruddin, learned Counsel for the appellant has submitted that the approach of the trial court for convicting the appellant is apparently contrary to the record. The evidence available on record was not appreciated in accordance with settled legal position. The enmity between the family of Ziyauddin and the appellant has not been considered as there was a dispute regarding said servant the Qucss. because earlier he was working in the family of the appellant but by wrongful means he was taken by Ziyauddin, hence the possibility of false implications could not be ruled out. Firstly he has submitted that the trial court has committed a grave error in not drawing the adverse inference against the prosecution on account of non-examination of Quess, the victim. In the absence of his deposition, no inference could have been drawn against the appellant for such offence. As per settled position of law till the accused is not identified by the victim, a person can not be held guilty mere on the basis of supporting evidence. According to his submission the supporting evidence was also inconsistent to each other. He referred the testimony of Ziyauddin (PW-8) in which it is stated that he was informed by his son Kutubuddin (PW-10) that Quess has been beaten by someone. It means the name of assailant was not known to Kutubuddin also. That is why at the first instance he did not mention the name of assailant to Ziyauddin. While the appellant was well known to him and the same could have been stated to Ziyauddin. Hence, the testimony of Ziyauddin is not reliable. As according to him Kutubuddin was not knowing the name of the assailant. They visited the place of incident after five hours and found to victim sitting on a stone even after sustaining the injuries dangerous, grievous or fatal in nature. It appears to be unnatural. In such circumstance, the deposition of Riyazuddin (PW-13) the brother of Ziyauddin is also not reliable. They visited the place of incident after five hours and found to victim sitting on a stone even after sustaining the injuries dangerous, grievous or fatal in nature. It appears to be unnatural. In such circumstance, the deposition of Riyazuddin (PW-13) the brother of Ziyauddin is also not reliable. On account of the same circumstances Pyare Miya (PW-14) the nearest person of the family of Ziyauddin is also not reliable as he stated that Ziyauddin was informed by Kutubuddin about the incident while he was sitting with him but the same was not stated by Jiyauddin. Hence, he is also not reliable. Accordingly story put fourth by the prosecution could not have been held to be proved in the lack of deposition of material and reliable evidence. Thus, mere on the ground of sustaining injuries by the victim, the appellant could not be held guilty for the same. In any circumstances in the absence of examination of victim the appellant could not be convicted. The prosecution has not put forth any probable and reliable explanation for his non-examination. Therefore, the trial court ought to have acquitted the appellant but contrary to it, he has been convicted. With these submission he prayed for setting aside the judgment of the trial court by allowing his appeal. ( 5. ) WHILE other hand, counsel for the State has submitted that non-examination of the victim does not affect the case of the prosecution in view of the other evidence available on the record He justified the impugned judgment, conviction and sentence of the appellant. He also stated that the trial court has rightly held guilty to the appellant on proper appreciation of the evidence. It does not require any interference at this stage and prayed for dismissal of appeal. ( 6. ) HAVING heard the learned Counsels, I have perused the record and also gone through the impugned judgment. It is not in dispute that victim Quess has sustained following injuries on his person as mentioned in the Ex. P/9. The same was proved by Dr. Suresh Kumar Jarathe (PW-9): i. Incised wound (punctured ) 3 cm x 1 cm long deep, ( Pleura ruptured air coming out from wound on breathing ). On right side of chest 10 cm below right nipple. ii. P/9. The same was proved by Dr. Suresh Kumar Jarathe (PW-9): i. Incised wound (punctured ) 3 cm x 1 cm long deep, ( Pleura ruptured air coming out from wound on breathing ). On right side of chest 10 cm below right nipple. ii. Incised wound 3 cm x 1 cm long deep on right side of chest in right axilla 14 c. m. below Right nipple (air coming out from wound on breathing ). iii. Incised wound 2 cm x 6 cm. On right side of back 7 cm below injury No. 2 and air coming on out from wound on breathing. iv. Incise wound 2 x 1 c. m. much deep on right side of back 11 c. above injury No. 2. v. Incise wound 2 cm x 06 c. m. x muscle deep on right side of palm at the base of little fingers the aforesaid doctor has opined that except injury No. 5 other injuries were grievous in nature and he advised for X-ray also. He referred the patient to Hamidiya Hospital, Bhopal where the victim was examined by Dr. P. D. Modi (PW-15 ). He also prepared the MLC, Ex. P/l 8 and found only following four injuries : i. Obliquely placed penetrating wound Rt. 6th I. C. S. Ant axillary line obliquely placed, 3 c. m. long x 5 c. m. in centre. ii. Air sucking wound Rt. Chest below and lateral to injury No. 1; 3 c. m. x 5 c. m. vertically placed. In 8th ICS penetrating wound. iii. Incised wound Rt. Side chest, on the back in infrascapular region on 9th ICS 2 c. m. x 4 c. m. muscle deep. iv. Penetrating wound 2 c. m. x 5 c. m. over right side chest on 12th ICS muscle deep clotted blood present over all injuries. i. He opined the injury No. (1) and (2) are dangerous to life produced by hard sharp object. ii. Injury No. (3) and (4) simple in nature caused by hard and sharp object, iii. Duration within 24 hours of my examination. iv. Opinion for X-ray to be taken from Radiologist ( 7. ) SO far injury of abdomen is concerned, the victim was operated by Dr. ii. Injury No. (3) and (4) simple in nature caused by hard and sharp object, iii. Duration within 24 hours of my examination. iv. Opinion for X-ray to be taken from Radiologist ( 7. ) SO far injury of abdomen is concerned, the victim was operated by Dr. P. D. Modi (PW-15), he found the injury No. 1 and 2, had gone deep through the muscles layer and Pleura producing hemothorax (about 200 ml Blood), through and through tear on the right dome of diaphragm. He also found laceration on superior surface of lever. He also found hematoma (300-400 m. l. Blood) between the cavity of diaphragm and liver. ( 8. ) DR. V. C. Choudhari (PW-9), Radiologist has taken out the X-ray, Ex. P/12 and P/14 and gave his report, Ex. P/15. According to it he found the collection of fluids in post castro phrenic angle in lateral view. He also found basal Pneumotho box and fluids level at right side in P. A. view. ( 9. ) THEREFORE the injuries No. 1 and 2 as per MLC, Ex. P/18 were not only dangerous to life, if it were not treated within time then the same could have caused death of victim. The same have been deposed by said Dr. P. D. Modi in his deposition and till some extent by Dr. Suresh Kumar Jarathe (PW-5 ). Contrary to it, I have not found anything in their cross-examination. Hence, it is held that injuries sustained by the victim were sufficient to cause death in ordinary course of nature. ( 10. ) NOW the court has to consider the evidence to draw the inference whether injuries that were caused to the victim were either by appellant or other person. In this regard, I proceed to examine evidence available on record. ( 11. ) INITIALLY the report Ex. P/10 lodged at P. S. Doraha at about 8. 10 p. m. on the date of incident while incident took place at about 12. 30 in the noon. Till then the victim was neither sent to the hospital nor to Police Station. In this regard, I proceed to examine evidence available on record. ( 11. ) INITIALLY the report Ex. P/10 lodged at P. S. Doraha at about 8. 10 p. m. on the date of incident while incident took place at about 12. 30 in the noon. Till then the victim was neither sent to the hospital nor to Police Station. If the incident took place in presence of Kutubuddin (PW-10.) as alleged by the prosecution, then looking to the nature of the injuries in the normal course immediately after the incident Kutubuddin would have taken to victim to the hospital by arranging conveyance but till 5 oclock in the evening Kutubuddin or Ziysuddin or alleged witnesses even not visited the place of incident. It means the victim was laying or sitting in the grass-field without any help. It is not natural conduct and the same creates suspicion regarding presence of Kutubuddin on the spot at the time of incident. The falsity of deposition of Kutubuddin (PW-10) is established from its own, as stated that he immediately informed the incident to his father with name of the appellant while his father PW-8 says that he was informed by Kutubuddin that someone has given the blows of knife to the victim. It shows that Kutubuddin was also not aware the name of assailant otherwise he could have mentioned the same to his father and he should have stated the name of the appellant as assailant This is a measure inconsistency in the depositions. Although Pyare Miya (PW-14) has stated in his deposition that Ziyauddin was sitting with him at his residence in the evening and he was informed by his son Kutubuddin bout the incident with the name of the appellant as assailant. This version could not be reliable because as per deposition of Kutubuddin he immediately informed to his father at his residence in the noon itself, While this witness says that the aforesaid information was given at his residence in the evening. In view of this inconsistency all these three witnesses are not reliable in respect of the fact that such injuries were caused by the appellant by means of knife to the victim. ( 12. In view of this inconsistency all these three witnesses are not reliable in respect of the fact that such injuries were caused by the appellant by means of knife to the victim. ( 12. ) SO far the other witnesses, Riyazuddin (PW-13), the brother of said Ziyauddin who visited the grass-field in the evening could not be considered as a supporting witnesses for the prosecution as whatsoever he stated, that is only hearsay evidence heard either from Quees or from his brother or nephew. The same is hit by Section 60 of the Evidence Act. ( 13. ) OTHER witnesses, although they have been examined as circumstantial witnesses of the incident but they have not supported to the prosecution in any manner as evident on record as Latifuddin (PW-1), Shoukat (PW-7), Atiquddin (PW-11), Fiyazuddin (PW-12 ). Even alter declaring them hostile, nothing fruitful has come on record from them. ( 14. ) IN the aforesaid circumstances it is held that at the time of incident Kutub Uddin was not present on the spot at the time of incident and also not seen to the assailant who gave the blows of knife or other implement to the victim. In pursuance of it the depositions of other witnesses on whom the trial court has based its judgment are also not reliable as the same are based on the information of Kutubuddin (PW-10 ). The same could not be relied on unless it is supported by the deposition of victim himself. ( 15. ) REGARDING non-examination of the victim the prosecution has not put fourth any sufficient cause or explanation. Thus, in the peculiar facts and circumstances of the case his non examination is sufficient circumstance to draw inference against the prosecution and in favour of appellant that the injuries sustained by the victim were not caused by the appellant and the same could not be connected with the appellant. ( 16. ) THE aforesaid witnesses on whom the trial court has held guilty to the appellant have some enmity with him due to servant as earlier Quees was working in the family of the appellant and he was taken by wrongful means by Ziyauddin (PW-8) in his family. It created some inimical relation in both the families. ( 16. ) THE aforesaid witnesses on whom the trial court has held guilty to the appellant have some enmity with him due to servant as earlier Quees was working in the family of the appellant and he was taken by wrongful means by Ziyauddin (PW-8) in his family. It created some inimical relation in both the families. Therefore, it appears that on receiving the information of sustaining injuries by the Quees, in some incident said Kutubuddin and Ziyauddin and their family members have managed the case for false implication of the appellant and that is why the incident was reported at belated stage after 8 hours. Thus false implication of the appellant could, not be ruled out. In such circumstances it creates doubt against the case of prosecution. It is also settled law that whenever the doubt is established, in the criminal case then the benefit of it should be given to the accused-appellant, But the trial court has not considered this aspect also. ( 17. ) HENCE, it is held that the trial court has committed grave error perversity and impropriety in holding the guilty to the appellant for the alleged offence. ( 18. ) THEREFORE, in view of the aforesaid discussion, the judgment of the trial court as well as conviction of the appellant are not sustainable under the law. Hence the same is set aside by acquitting the appellant from the alleged charges. The bail bond and surety bond of the appellant are hereby cancelled. The fine amount if deposited then same be refunded to him. Accordingly the appeal is allowed.