Judgement l. The present appeal is preferred by the appellant convict [original accused] [hereafter to be referred to as “the accused”] under Section 374 read with Section 386 of Code of Criminal Procedure challenging the judgment and order of conviction dated 19.2.1991 rendered by the Additional Sessions Judge, Nadiad in Sessions Case No. 75 of 1990, whereby the appellant was held guilty of the charge of offences punishable under Section 302 of I.P.C. The learned trial Judge convicted the appellant-accused and sentenced him to life imprisonment and to pay fine of Rs. 5,ooo/- and in default of payment of fine, sentenced him to undergo simple imprisonment of six months. The judgment is challenged on various grounds mentioned in para-5 of the memo of the appeal. Mr. Nitin Amin, learned counsel appearing on behalf of Ms. Amee Yajnik for the appellant has taken us through various grounds of challenge and has submitted that the order of conviction and sentence is not sustainable, more particularly, in the background of the facts and circumstances emerging from the evidence led by the prosecution, and has submitted that the conviction being unwarranted, the accused deserves acquittal. 2. It would be appropriate to state facts alleged by the prosecution leading to initiation of ‘trial of Sessions Case No. 75 of 1990. According to the prosecution, Jayantibhai, real brother of PW 3 Kanu Parsottambhai was murdered. P.W, 3 Kanu and deceased Jayanti had four more brothers and thus, they were total six brothers. Bachubhai is the eldest Deceased Jayantibhai was younger to Bachubhai. Ramesh was younger to deceased Jayanti, fourth brother was Kanubhai himself, fifth brother was Ashokbhai and the sixth brother was Rohitbhai. Deceased Jayanti and Kanu [P.W.3] were serving with transport businessman Mohammedali, resident of Vaso of District Kheda. They were working as driver and cleaner. Jayanti was driver of truck no. GRG 7305 and Kanu [P.W-3] was cleaner. One Babusing was another driver in the transport company of Mohammedali. According to prosecution, Kanu [P.W.3] had married to Minaben, real sister of appellant-accused. They were working as driver and cleaner. Jayanti was driver of truck no. GRG 7305 and Kanu [P.W-3] was cleaner. One Babusing was another driver in the transport company of Mohammedali. According to prosecution, Kanu [P.W.3] had married to Minaben, real sister of appellant-accused. One another sister of accused, namely, Kokila was married with Ramesh, elder brother of Kanu [P.W.3], It is alleged that on account of a discord, Mina, wife of Ramesh was residing with Kanu [P.W.3], So, two sisters, namely, Mina and Kokila were staying with Kanu [P.W.3] and these relations, as alleged by the prosecution were accepted by both the families including elder brother of Kanu [P.W.3.], wife of Kanu and Ramesh. On the date of the incident, both, i.e. wife of Kanu [P. W.3] and wife of Ramesh were at Anand at their parental place, i.e. at the residence of the accused. Wife of the accused is originally resident of town Vaso and accused had been to his in-laws home Vaso three days prior to the incident in question. As per the prosecution, Kanu [P.W.3J being brother-in-law of accused had told the accused that he and the deceased Jayanti were to go to Jamnagar with a truck and the accused Rajubhai, if wished, could accompany them and may join them. The accused Rajubhai thereafter joined them and accompanied them to Jamnagar on 22nd November, 1989. All of them, i.e. accused Raju, Kanu [P.W-3], deceased Jayanti and another driver Babusing had come back from Jamnagar after loading Soda Ash in their truck in the early hours at about 5.00 a.m. in the morning and had taken snacks at: Vaso. Initially, truck was to be taken to Nadiad as the same required repairing. It is the case of the prosecution that the truck was to proceed to Dhuliya [Maharashtra] and Kanu [P.W.3.] had asked the accused that whether he wanted to join them further or wanted to stay at Vaso at his in laws’ home, as his wife was there at her parental home. To the query of Kanu [P.W..3], the accused had told Kanu that he would join them as he wanted to go to Anand so that he can drop down at Anand. To the query of Kanu [P.W..3], the accused had told Kanu that he would join them as he wanted to go to Anand so that he can drop down at Anand. Therefore, accused, Kanu [P.W.3], deceased Jayanti and driver Babusing had left for Nadiad at about 8.00 a.m. in the morning, they had met Mohammedali, their Sheth [boss] near Dabhan village near Nadiad, where Mohammedali instructed them to take the truck to Nadiad for necessary repairs. The truck was then taken to Nadiad at about 3.00 p.m. and after getting the truck repaired, they had left for Dhulia. It is alleged that at about 4.00 p.m. On that very day, i.e. on 22nd November, 1989, the truck reached at Samarkha Chokdi where the deceased Jayanti had stopped the truck. At that time, accused Raju had told the deceased Jayanti to have cigarette smoking. Babusing and Kanu [P.W.3] had remained with the truck. Deceased Jayanti and accused went to have pleasure of smoking. It is further alleged that after having smoking, they were returning towards the truck and at that time, accused Raju had given knife blows to deceased Jayanti and done him to death. It is also the case of the prosecution that Kanu [P.W.3] had tried to save his brother, but the accused, with open knife had run after him and therefore, Kanu had run away and after taking a lift on a scooter, had reached Baroda. The scooterist dropped him near Baroda Railway Station, from where Kanu boarded a train for Nadiad. Thereafter, he reached his town Vaso in a truck and informed the family members about the incident 3. The allegation of the prosecution is that in the meanwhile, Babusing had reached to Mohammedali his Sheth [boss] and informed him about the incident and they had reached at the place of the incident. Before the arrival of Mohammedali and Babusing on the spot of the incident, Iqbal, brother of Mohammedali had already reached at the place of incident and he had also attempted to inform his brother Mohammedali about the incident Before Mohammedali, Babusing and others reached at the spot of incident, Police Patel of village Gamdi had seen the dead body of the deceased Jayanti lying some feet away from the National Highway No.8 at Samarkha Chokdi and he informed the police about the dead body lying there. He also informed that a man-was murdered. He also informed that a man-was murdered. Therefore, the police recorded a complaint of Police Patel Ramesh Shana at about 18.15 hrs. The police had started investigation on the strength of the complaint given by Ramesh Shana. When Mohammedali and Babusing reached at the place of incident, police was present there. The police investigated the crime and ultimately found that the accused had killed the deceased Jayanti. It is pleaded by the prosecution that the accused was under a belief that matrimonial life of his two sisters was spoiled by this deceased Jayanti. Therefore, he took the deceased to have pleasure of cigarette smoking and assaulted him with knife and killed him. 4. Learned trial Judge after appreciating the oral as well as documentary evidence led during the course of trial by the prosecution held that the prosecution had satisfactorily established the guilt of the accused beyond doubt and therefore, he was required to be convicted and was accordingly convicted. 5. It is submitted by Mr. Nitin Amin that the learned trial Judge committed grave error in appreciating the evidence available on record and that the finding recorded by him is based on conjectures and surmises. Finding of guilt is based mainly on assumptions and presumptions and the learned trial Judge, ought not to have drawn such assumptions and presumptions in view of the availability of the evidence and nature of facts and circumstances emerging from the evidence, 6. Prosecution has examined 9 witnesses. However, conviction is based mainly on the oral evidence of Kanu [P.W.3] who was posed as eye witness and Mohammedali [P.W.4] with whom deceased Jayanti and Kanu [P.W.3] were serving. Learned trial Judge has accepted the facts stated by Kanu [P.W.3] in his deposition before the court and the learned trial Judge has held that deposition of Mohammedali [P.W.4] corroborates the version of eye witness Kanu [P-W.3]. It is believed by the trial Judge that Kanu [P.W.3] had unfolded true story before Mohammedali [P.W.4] and therefore, there is no reason to disbelieve Mohammedali [P.W.4] as important witness and competent to corroborate the version of the eye witness. The learned trial Judge has also considered the report of the F.S.L tendered in the evidence by Investigating Officer [P.W.9] Fatesinh Khant The report shows that clothes recovered from the body of the accused were stained with blood and that blood is of the blood group of the deceased. The learned trial Judge has also considered the report of the F.S.L tendered in the evidence by Investigating Officer [P.W.9] Fatesinh Khant The report shows that clothes recovered from the body of the accused were stained with blood and that blood is of the blood group of the deceased. Learned trial Judge has also considered the conduct of the accused of surrendering to the police station with muddamal knife used in commission of offence, but the backbone of the submission of Mr. Amin is that the learned trial Judge has grossly erred in accepting the version of Kanu [P.W.3] as eye witness and material improvement made by this witness, and contradictions that have emerged during the course of the cross-examination have been ignored while accepting the version of Kanu [P.W.3] as trustworthy witness. It is also submitted that there is no consistency in the version of Kanu [P.W.3] and Mohammedali [P.W.4] whose version has been accepted as reliable version and reliable piece of evidence and capable of corroborating the testimony of Kanu [P.W.3]. On the contrary if the evidence of this two witnesses is closely scanned, it emerges that these two witnesses have attempted to put curtain on certain material facts and other circumstances and therefore, conviction ought not to have been based on the version of these two witnesses. If the evidence of Kanu [P.W.3] is excluded saying that the same is not reliable piece of evidence, then, the evidence of Mohammedali [P.W.4] loses its significance and therefore, it ought to have been held that the evidence of these two witnesses does not appear to be sufficient to link the accused with the crime. The panchas have not supported so far as the panchnama drawn by the police at the time of alleged surrender of the accused in the police station is concerned. This story placed by the prosecution appears to be highly improbable. On the. contrary, it is more probable that the accused must have been arrested from his residence or as a suspect only from the residence of his in-laws because of the relations of Kanu [P.W.3] with 2 sisters of the accused. This story placed by the prosecution appears to be highly improbable. On the. contrary, it is more probable that the accused must have been arrested from his residence or as a suspect only from the residence of his in-laws because of the relations of Kanu [P.W.3] with 2 sisters of the accused. The case of the prosecution is mainly that on the date of the incident, both the sisters were at their parental home, i.e. at the residence of the accused and either Kanu [P.W.3] or police may have suspected the accused for murder of deceased Jayanti. But this suspicion ought not to have been equated with the proof. 7. As submitted by Mr. Amin the conduct of the accused is relevant and can be considered by the Court while evaluating the circumstances emerging from the evidence and such conduct can also be considered as corroborative circumstance to the story placed by the prosecution. But it: was not safe for the learned trial Judge to place reliance on the version of the Police. Inspector Fatesinh Sahebsinh [P.W.9] or any other witness that accused had surrendered before the police station voluntarily and that too with muddamal knife. In absence of independent evidence, this conduct of the accused of going to police station appears to be highly improbable. Somebody from the residence of the accused or his neighbour or family member could have been examined to support the say of the prosecution that the accused was not available on the night of the incident as stated by the police witness. It appears that no such panchnama as to absence of accused at his residence was drawn. Therefore, it would not be save to draw an inference that accused had remained absconding during the whole- night and had then surrendered before the police station with blood stained knife. It is submitted by Mr. Amin that blood sample of the accused was not drawn, quantity of blood allegedly found on the clothes of the accused was also not narrated specifically in the panchnama of arrest of the accused nor the police officer has stated anything in this regard. It is submitted by Mr. Amin that blood sample of the accused was not drawn, quantity of blood allegedly found on the clothes of the accused was also not narrated specifically in the panchnama of arrest of the accused nor the police officer has stated anything in this regard. Therefore, for the sake of argument, even if it is accepted that the clothes of the accused were stained with blood and that human blood was of the same group of that of the deceased, even then, that circumstance by itself could not have been accepted as sufficient evidence to link the accused with the crime. In absence of group of blood of the accused,, such inference, when panchas have not supported the case of the prosecution, ought not to have been drawn. Thus Mr. Amin in nutshell has stated that; [i] Considering the conduct of Kanu [P. W-3], he ought not to have been accepted as eye witness of the incident and/or reliable evidence to link the accused with the crime; [ii] Having regard to the conflict in the evidence and the facts emerging from the record, evidence of Mohammedali ought not to have been accepted as cogent or convincing piece of evidence which can be used as reliable piece of evidence for linking the accused with the crime. [iii] Non-examination of Babusingh would go to the root of the order of conviction. He is independent person and considering the blood relations between the eye witness Kanu [P.W.3] and deceased Jayanti, non-examination of this witness Babusingh ought to have been considered appropriately and the case of the prosecution was required to be thrown out on this sole ground or at least, the Court itself could have examined Babusingh if prosecution was not inclined to examine him as witness. [iv] There is no satisfactory evidence on record to show that accused had ever accompanied deceased Jayanti, Kanu [P.W.3] and Babusingh when they visited Jamnagar, [v] For the sake of argument even if it is accepted that the-accused had boarded the truck along with the driver of the truck from Vaso, then also, case of the prosecution is that the accused himself had never insisted to board the truck. On the contrary, he was invited to board the truck, not only that, but to accompany them, He was on the contrary, told that the truck was proceeding towards Dhuliya and if the accused intended to go with them, he could even accompany the said prosecution witnesses. At that time, the response given by the accused, on the contrary, appeared to be very natural. Undisputedly, place of residence of the accused is An and therefore, to reach Anand, he was supposed to drop down at Samarkha Chokdi. So, getting down from truck at Samarkha Chokdi by itself is not guilty conduct [vi] Conduct of eye witness Kanu [P.W.3], even if really he was an eye witness, is highly unnatural and he has not disclosed the incident at the earliest available opportunity for several hours. This makes the story unfolded by the prosecution as unreliable. In absence of independent evidence in reference to alleged surrender of the accused to the police station, evidence of Investigating Officer ought not to have been accepted as gospel truth and the learned trial Judge ought to have sought some corroboration for accepting the evidence of the Investigating Officer in this regard. [vii] Even the facts emerging from the postmortem note and the evidence given by the doctor [P.W.1] makes the time of death doubtful. [viii] Hostility of witness Iqbal, real brother of Mohammedali [P.W.4] adversely affects the case of the prosecution, more particularly, the evidence of Mohammedali. If the evidence of this hostile witness is read in reference to context of Mohammedan, then, it is possible to infer that prosecution witnesses have tried to suppress some facts and therefore only, both these witnesses have, not stated anything trustworthy about the incident and also about Babusing who, as per the case, of the prosecution, was present in the very truck which deceased Jayanti was perhaps driving at the relevant point of time, that is, prior to the incident It is very likely that such truck was to travel for some more kilometers and looking to the possibility of overnight journey, owner of the truck may have provided second driver. The facts show that the truck was loaded with Soda Ash, When the case of the prosecution is that this loaded truck was repaired at Nadiad, then, sending second driver in the truck appears to be more probable. The facts show that the truck was loaded with Soda Ash, When the case of the prosecution is that this loaded truck was repaired at Nadiad, then, sending second driver in the truck appears to be more probable. If Kanu [P.W.3] had really gone to Jamnagar from where the truck was loaded with Soda Ash so as to deliver it at Dhuliya, this Kanu [P.W.3] may have, discontinued his journey at village Vaso and second driver Babusing may have, joined the journey with deceased Jayanti, because, it is the evidence of the prosecution that the truck had reached Vaso in early morning at about 5.00 a.m. on the date of the incident and after taking some snacks, they had left village Vaso at about 9,00 a.m. In this situation, dropping of Kanu [P.W.3] at Vaso and entry of Babusing as second driver appears to be more probable and this is inferable on the strength of the contradictions that have emerged from the evidence of Kanu [P.W.3] and his conduct after the alleged incident where his real brother was killed. [ix] Evidence of motive placed by the prosecution is not useful at all, because, deceased Jayanti was never party in the matrimonial relations of two sisters of the accused. The accused, if had any problem, then, it must be either with husband of Mina or Kanu [P.W.3] who was keeping two sisters with him. For short, according to Mr. Amin the conviction based on inadequate evidence deserves to be reversed and the accused may be acquitted. 8. Mr. H.L Jani, learned Addl. PP, while resisting the submissions of Mr. Amin has submitted that the learned trial Judge has thoroughly discussed the evidence of Kanu [P.W.3] and Mohammedali [P.W.4] and has also assigned reasons that why these two witnesses should be believed and have been believed, That the learned trial Judge was not wrong in assuming that cleaner must be in the company of the driver when the truck was proceeding on a long journey. There is no cross-examination worth the name as to employment of Kanu [P.W.3] as cleaner on the very truck before they proceeded for Dhuliya, For the sake of argument even if it is accepted that there is no evidence on record to show that the accused had also accompanied deceased Jayanti and Kanu [P.W.3] when they had been to Jarnnager, even then, the case of the prosecution would remain unaffected. The prosecution case is not in reference to the journey of this group of persons to Jamnagar. The prosecution was supposed to establish one fact that the accused was in the truck and he had dropped down from the truck at Samarkha Chokdi. Driver Jayanti had accompanied him at the request of the accused and the accused was last in the company of the deceased who was found dead ultimately after some hours. It was possible for the learned trial Judge to observe that the accused was supposed to explain his position after the incident, because, police officer has stated in his deposition that the accused was not available at his residence though he had left Vaso to reach Anand at his residence. True it is that Nil panchriama has not been drawn by the police about the non-availability of the accused at his residence on the night of the date of the incident But the Court can safely place reliance on the evidence of the police officer if the same is found reliable. Merely because a person is a police officer, his oral version before the Court should not be viewed with shadow of doubt The learned trial Judge has also noticed that over and above the evidence of these two witnesses who have proved that the accused was in the truck which was proceeding towards Dhuliya and driver of that very truck is found murdered by the owner of the truck, then, owner would always inquire that as to what had happened to that unknown person who was in the company of his driver Jayanti and his cleaner Kanu [P.W.3]. It is in the evidence that once all the three, i.e. Babusing, Mohammedali and Kanu were there at village Vaso and from there, they had proceeded towards the place of incident where they found policemen and process of drawing panchnama of the scene of offence was going on. It is in the evidence that once all the three, i.e. Babusing, Mohammedali and Kanu were there at village Vaso and from there, they had proceeded towards the place of incident where they found policemen and process of drawing panchnama of the scene of offence was going on. Mohammedali [P.W.4] has been rightly believed by the learned trial court that Kanu [P.W.3] must have been told that how his brother Jayanti was killed and why his Sheth [boss] should accompany him to the place of incident True it is that the statement of Kanu [P.W.3] has been recorded late whereas the same could have been recorded immediately on the spot of the incident on arrival of Kanu [P.W.3]. But that would not make evidence of Kanu [P.W.3] doubtful, because, the conviction is not based only on the evidence of Kanu. The learned trial Judge has used his wisdom in seeking strong corroboration and this corroboration is of the. report of FSL and the version of the police officer to whom the accused himseif had surrendered. This is not a case based only on circumstantial evidence, but this is a case where version of eye witness has been believed as the same is found corroborated by independent evidence of report of the FSL, For short, according to Mr. Jani, this is a fit case where the appeal should be dismissed and the order of conviction may be upheld. 9. While responding to the argument of non-examination of Babusing say of Mr. Jani is that there were two eye witnesses and the prosecution was satisfied after examining one of them and there was no need to duplicate the evidence. When real brother of the deceased was ready to depose before the Court who had some knowledge about the motive as to crime committed and when he is close relative of the accused being brother-in-law, he was selected as a witness which requires to be examined. Complaint in the present case is practically innocuous, because same is given by Police Patel who had seen the dead body at about 18,35 hrs. Thus, the dead body remained at the place of incident for more than two hours from the time of alleged assault Conduct of Babusing, as pleaded by prosecution of informing his Sheth [boss] about the incident appears to be natural. Thus, the dead body remained at the place of incident for more than two hours from the time of alleged assault Conduct of Babusing, as pleaded by prosecution of informing his Sheth [boss] about the incident appears to be natural. Mohammedali [P.W-4] has stated about this fact and therefore, non-examination of Babusing would not affect the case of the prosecution adversely. 11. It is not necessary to describe the evidence given by Kanu [P.W.3] before the ‘trial Court as we have discussed the type of evidence led by him while recording the submissions of learned counsel for the parties. Crucial question posed before us is that whether Kanu [P.W.3] ought to have been believed as reliable witness being eye witness to the incident. As per the facts stated above, at about 3.00 p.m truck had left An and after formal repairs that were required to be carried out on the strength of the instructions given by Mohammedali and the type of incident Type of incident at 4.00 p.m and distance between Sarnarkha Chokdi, Nadiad, has not come on record. The court can take judicial notice of the distance on the strength of the map of the State of Gujarat It appears that if the truck had really left at about 3.00 p.m, it must have reached Samarkha Chokdi at 4,00 p.m. That the truck had left Vaso in the morning at about .9,00 a.m, Repairing work was carried out at Anand up to 3,00 p. rn and then the truck had proceeded for Dhultya. There was no need to stop the truck at Samarkha Chokdi unless requested, It is in the evidence that the accused was to get down from the truck It is also in the evidence, of Kami [P.W..3] that he had told the accused that whether he wanted to accompany them or wanted to stay at Vaso at the house of his in-laws. In response to this, the accused had stated that he was not interested in accompany ing them and may accompany them up to Anand as he intended to go to Anand. It is not a matter of dispute between the parties that to go to Anand, one has to drop down at Samarkha Chokdi. So, the conduct of the accused of leaving the truck at Samarkha Chokdi does not seem to be guilty conduct On the contrary, this conduct was obvious. It is not a matter of dispute between the parties that to go to Anand, one has to drop down at Samarkha Chokdi. So, the conduct of the accused of leaving the truck at Samarkha Chokdi does not seem to be guilty conduct On the contrary, this conduct was obvious. There was no reason for deceased Jayanti to drop down from the truck and after dropping the brother-in-law of his brothers i.e. Kanu [P.W.g] and Ramesh, the truck could have proceeded further. It is the say of Kanu [P.W.3] that both of them had left the truck at the request of the accused to have smoking of cigarette in the company of each other. Prior to that time, conduct of the accused was not found abnormal by any of the persons including Kanu [P.W.s] and this is an undisputed position emerging From the evidence available on the record. Written submissions submitted by Mr. Arnin over and above, the oral arguments advanced by him, need to be referred for the sake of brevity and convenience, because, in this written submissions, Mr. Arnin has attempted to point out infirmities in the evidence of Kanu [P.W.s] who is posing himself to be an eye witness. Plain reading of this written submissions give one indication that according to the appellant Kanu [P.W.3] was never an eye. witness, but he was planted as eye witness on account of non-availability of genuine eye witness of the incident though murder was committed during the broad day light and that too at a place where there were number of shops, number of vehicles must have been passing by and also there were two hotels. So, at one point of time, police must be lurching in dark and must be finding clue as to who committed this offence, It is very like.ly that the accused may have travelled in that truck up to that spot, i.e. Samarkha Chokdi, but when there is no reliable evidence as to the existence of motive, the prosecution was supposed to lead convincing and cogent evidence that ‘Kanu [P.W.s] was really eye witness and had seen the accused giving blows to the deceased. If Kanu [P.W..3] was able to visualize the incident, then, Babusing could have also seen the incident tlndisp.utedly, Mohammedali is not eye witness, then, evidence of Babusing would have helped Kanu [P.W.s] and corroborated Kanu and it was possible for the prosecution to establish beyond doubt that Kanu was genuine eye witness and was not planted as eye witness to the incident Infirmities pointed out by Mr. Amin in the evidence of the prosecution can be stated from the written submissions as under:- [i] The conduct of the witness Kanu [P.W.3.] is highly improbable and most unnatural. According to him, he saw the incident while he was in the truck and upon seeing the same, he proceeded to the scene of offence with a view to intervene and to save his brother. He has further stated that since the accused ran after him with knife, he ran towards Gamadi Bridge and from there he sat as a Pillion Rider on a scooter and went to Vadodara, From Vadodara Railway Station, he went to Nadiad by train and from Nadiad he went to Vaso by bus, This witness thereafter went to the house of his employer [sheth] and informed him about the incident It is pertinent to note that he has not stated in his police statement that he. was cleaning the truck from inside. The explanation given by him is that he was frightened and, therefore, he did not tell it to the police. The witness has further deposed that the deceased after receiving blows, started shouting and, therefore, he started running and shouting. He has stated that at the scene of offence, there were 5 to 7 trucks lying. There was Kashmir Hotel and another hotel was also there. There were pan bidi shops also. The area was highly populated as it was National Highway No. 8 and overloaded with the traffic, day and night. The witness has further stated that the accused ran after him for about 1 km. However, it is pertinent to note that the prosecution has not examined anybody to support this version of the witness. The Investigating Officer has recorded statements of persons who were, present at the scene of offence. The witness has further stated that the accused ran after him for about 1 km. However, it is pertinent to note that the prosecution has not examined anybody to support this version of the witness. The Investigating Officer has recorded statements of persons who were, present at the scene of offence. Most importantly, the witness is the brother of the deceased Jayanti and inspite of the fact that the incident occurred at 4.00 p.m he did not inform anybody till his police statement was recorded at the police station late in the night in between, this witness has got more than five opportunities whereby he could have immediately disclosed or informed the police about he being the witness to the incident. [ii] It is not possible to believe that scooterist would stop the scooter to give ride to Kanu [P.W.s] and that scooterist also was proceeding towards Vadodara and he voluntarily dropped Kanu [P.W’.s] at Vadodara railway station so that Kanu [P.W.,3] could return to Nadiad again and thereafter could reach Vaso. There is no evidence as to the name of the scooterist nor the number of the scooter. Name of the train is also not stated in the deposition that by which train this witness Kanu [P.W.3J reached back to Nadiad. Place of business of Mohammedali and his brother Iqbal appears to be at Nadiad and they had business connections at Nadiad. Truck, was repaired at Nadiad, even then, the people at Nadiad, as per the version of Kanu [P.W..3], were not informed about the incident When a person who had started running on seeing the accused running behind him with open knife arid who was under fear, then the question arises is whether he would restrain himself from informing the nearest and closest persons or police who could protect him from such or similar assault, which was made on his real brother Jayanti. This question does not find an answer. It is possible that he may not have informed the police personnel who were there on the road when he was proceeding towards Vadodara, but nobody prevented him from giving information at Nadtad when he returned to Nadiad, For a person to go to Vadodara, distance between Vadodara and Anand, i.e. Samarkha Chokdi, where, his brother was allegedly murdered is not that big distance. But for a scooterist, distance between Samarkha Chokdi and Vadodara can be said to be big distance. [iii] Most material part of the evidence of this witness Kanu [P.W.s] is that he has admitted in his evidence that when they reached at the scene of offence, the police was already there and was inquiring as to in what manner the incident had occurred. This witness has also admitted that even at that place, neither he nor his employer Mohammedali nor driver Babusing had informed the police about the incident This conduct of the witness is highly strange and not possible to gulp down for any person as the deceased was his real brother and natural and normal conduct of such person would be to immediately disclose, about, the manner in which the incident had occurred if he had really seen the incident The defence version is, therefore, more probable that in fact, this witness did not know as to how the incident had occurred and who injured his brother Jayariti and therefore, with a view to adjust the time, the story of getting lift on the scooter, then reaching to Vadodara and then to Nadiad and then to Vaso is introduced. [iv] Best available opportunity to Kanu [P.W.3] to inform the police was atChikhodara Chokdi when he was on the pillion seat of the scooter. He must have told the scooterist requesting him to drive fast for the reason given by him and he could have given some clues about this scooterist to the police. If the story of Kanu [P.W..3] is accepted as it is, then, it is possible to infer that this scooterist was the first person to whom, this witness Kanu [P.W.s] could have narrated the incident and about the murder of his real brother Jayariti. Jayanti was elder to him. When a person who sees his elder brother being killed before his eyes, then, the question arises is whether he would behave or react in a manner in which this witness has claimed to have reacted after this incident Such question has not been responded well by the trial court. Number of opportunities were there, i.e. at Chikhodara Chokdi or Vadodara or at Vadodara railway station or Nadiad police-, station, which have not been availed by this witness Kanu [P.W-3]. Even after reaching Vaso, he did not go to Vaso police station. Number of opportunities were there, i.e. at Chikhodara Chokdi or Vadodara or at Vadodara railway station or Nadiad police-, station, which have not been availed by this witness Kanu [P.W-3]. Even after reaching Vaso, he did not go to Vaso police station. During this time, one may think, to go to his residence to seek some mental support, but after that he could have gone to Vaso police station for lodging FIR or informed the local police to help him out. Conduct of Mohammedali of taking this Kanu [P.W.s] at the spot of the incident without informing anybody, more, particularly, to the police is also unusual conduct. None of these two persons can be placed in the category of a rustic villager or persons not able to understand the gravity of the murder committed. This Mohammedali was dealing in the business of transport, so he must have dealt with police personnel, officials from the State Road Transport Department, Municipal Corporation authorities in reference to the payment of octroi etc. He must have dealt with persons selling auto parts. Cleaner is also well versed, because, he is supposed to know Octroi Naka and meet the traffic police as and when the vehicle is stopped and the driver never gets down from the truck and does not leave, the steering. So, these, two persons who were examined before the trial court were able to state facts in detail to the police immediately after the incident [v] It is not possible to get convincing answer from the evidence led by the prosecution that when Babusing had informed Moharnmedali about the. return From Samarkha Chokdi and commission of murder of Jayanti. As it was not possible, to take a break any further on account of murder of Jayanti, he would have reached much earlier to Mohammedali [owner of the truck] either at Anand or at Vaso by arranging a lift in a vehicle, A person proceeding on a scooter to Vadodara would reach later than Babusing couid have reached to Mohammedali. Who prevented Moharnmedali or Babusing from informing the police that his driver was killed is a question and the answer to this question could have been given by Mohammedali or Babusing, We are not able to find any answer from the evidence of Mohammedali during the course of the trial. Who prevented Moharnmedali or Babusing from informing the police that his driver was killed is a question and the answer to this question could have been given by Mohammedali or Babusing, We are not able to find any answer from the evidence of Mohammedali during the course of the trial. So, non-examination of Babusing, according to us, appears to be vital lacuna in the evidence led by the prosecution and this witness could have established beyond doubt the presence of Kami [P.W.s] in the truck at the relevant point of time. [vi] The prosecution has tried to introduce a story that the employer-Mohammedan had also seen the accused going in the truck, with the witness Kanu [P.W.3J, the deceased and the driver Babusing. However, it is admitted by this witness Kanu that he had not stated before the police that Mohammedali had come from Vaso to Nadiad with them. The prosecution has tried to get support from the evidence of Mohammedali Sheth that there was one unknown man in the truck when he came from Vaso to Nadiad in his truck. However, it is proved that the said fact is not stated by the witness in his police statement and has admitted that he has not stated before the police that when they reached near Dabhan Chokdi, his employer Mohammedali met them and asked to take the truck to garage. In this respect, if the evidence of Moharnmedali [P.W-4 Exh.i6] is examined, it is pertinent to note that he has stated altogether different story in his evidence that he got information that there was an accident in his truck, in which the driver has expired. This witness Mohammedali has stated in his evidence that he was informed about the incident by Babusing, truck driver that the accused had injured the deceased. However, he has admitted that he was informed by Babusing is not stated by him in his police statement Moreover, his evidence is merely a hearsay evidence and the driver Babusing is not examined by the prosecution. He has further admitted that before the police he has not stated that they came to Nadiad in a truck and Babusing, driver met him at Vaso Bus Stand. The employer Moharnmedaii has further admitted in his evidence that when he went to Vaso from Nadiad he came to know from the police about the incident for the first time. He has further admitted that before the police he has not stated that they came to Nadiad in a truck and Babusing, driver met him at Vaso Bus Stand. The employer Moharnmedaii has further admitted in his evidence that when he went to Vaso from Nadiad he came to know from the police about the incident for the first time. This fact falsifies the say of witness Kariu that he informed his employer Moharnmedaii about the incident Moreover, the employer Mohammedan has further admitted that when Babusing, driver met him at Vaso Bus Stand he was very calm and similarly when the witness Kami met him at the house of the deceased he was also very calm. Witness Mohammedali has further admitted in his evidence that the fourth person who was in the truck was seen by him for the first time and thereafter he had seen him in th court. He has further admitted that he saw the fourth person only once and he did not remember his face. He has further admitted in his evidence that he could identify the. accused in th court when he was asked to get up. It is submitted that in the above view of the nature of evidence, the prosecution has failed to establish the guild against the accused and it is hazardous to base conviction only on the basis of the solitary witness, who is not absolutely reliable and his conduct is highly unnatural and improbable when the deceased was his younger brother. [vii] The evidence of Kanu [P.W-3] as to visit of the accused with them [Kanu and his brother deceased Jayanti] at Jamnagar is uncorroborated testimony and narration of the conduct of the accused given by this witness in his deposition appears to be strange, because, it is the say of the prosecution that the truck had reached Vaso at 5.00 a.m in the morning. Normal conduct of the accused would be of going to his in-law’s house so that he can have rest and decide what to do in the next morning. Version of Kanu [P.W.3] gives an impression that they parted at 5.00 a.m in the morning and again met at about 9.00 a. m when they-were about to leave for Dhuliya. Normal conduct of the accused would be of going to his in-law’s house so that he can have rest and decide what to do in the next morning. Version of Kanu [P.W.3] gives an impression that they parted at 5.00 a.m in the morning and again met at about 9.00 a. m when they-were about to leave for Dhuliya. There is nothing in the evidence of Kanu [P.W’.g] that where they separated at 5,00 a.m and when they started and that it-was decided to leave Vaso at 9.00 a.m, Claim of this witness Kanu [P.W.s] is that he told the accused to accompany them if he was interested. On the contrary, from the nature of evidence, it appears Kanu [P.W.s] may have told the accused whether he wanted to go to An and and if the truck proceeded in the direction of Anand, his brother-in-law Kanu [P.W..3] may have arranged for a lift and Kanu, after arranging lift for his brother-in-law may have decided to discontinue his journey as he had just returned from Jarnnagar, and Babusing may have entered the truck as second driver. If the accused was to reach Anand, considering the distance between Vaso and Anand, the accused would not have wasted his precious hours from 9.00 a. m to 3.00 p. rn at Nadiad where truck was being repaired. It is therefore possible that the accused, if ever had boarded the truck, he may have boarded it from Nadiad and not from Vaso as claimed by Kanu. It appears that the learned trial Judge has not even thought of number of contingencies which are emerging from the set of evidence available on the record. Learned APP has fairly accepted in answer to a query raised by us that such motive pleaded by the. prosecution is not genuine so far as Jayanti is concerned and there, was no reason for the accused to kill Jayanti on account of matrimonial life of sister of the accused, True it is that motive is not likely to be pleaded or proved and the nature of proof as to motive, if pleaded, is relevant Here motive is specifically pleaded against the accused and the same is not found substan lively proved. In this background and relations interse between Kanu [P.W.g] and the deceased and the fact that Kanu was keeping two sisters of the accused with him and the contradiction and improvement made by Kanu [P.W. 3] as eye witness, were required to be scanned , closely. That exercise, perhaps, appears not to have been done by the learned trial Judge. 12. The learned trial Judge has committed error in reading some part of the evidence of Mohamrnedali though the same is hearsay evidence. As for example, the fact stated by Babusirig to Mohammedali ought not to have been received nor read in the evidence as a piece of substantive evidence, because, Babusing is not examined. So, if this part of the evidence is taken out from the evidence of Mohammedali being hearsay and inadmissible, even prosecution will be supposed to explain that On the contrary, it is possible that Iqbal-brother of P.W. 4 Mohammedali who has turned hostile may have intimated his brother that his driver has been murdered and by that time, Babusing may have reached Mohammedali. 13. Conflict in the evidence as to meeting place of accused, Kanu [P.W.3], Jayanti and Babusing with Mohammedali in the morning hours when they were proceeding towards Dhulia from Nadiad also is found relevant, because, it is the say of the prosecution that when they were proceeding towards Dhuliya, Mohammedali, owner of the truck met them at Dabhari and at Dabhan, Mohammedali instructed them to go to Anand and get the truck repaired. It has also come in the evidence that they had reached Anand and they had met for the first time at Anand. When Mohammedali himself has accepted in his deposition that when truck left for Dhuliya, he would be aware that who and how many persons actually boarded the truck. This witness Mohammedali has referred the accused as one unknown person in his deposition. He could have stated that when his truck proceeded towards Dhuliya from Anand, that unknown person had boarded the truck when he says that he had handed over some cash to deceased Jayanti, first driver of the truck. This part of evidence shakes the credibility of this witness Mohammedali as well as genuineness of the presence of Kami. He could have stated that when his truck proceeded towards Dhuliya from Anand, that unknown person had boarded the truck when he says that he had handed over some cash to deceased Jayanti, first driver of the truck. This part of evidence shakes the credibility of this witness Mohammedali as well as genuineness of the presence of Kami. It is possible to infer in normal course that a cleaner would be there to assist the driver of a goods vehicle when the cleaner claims that he was on the truck and the same was proceeding to a particular destination provided there is no serious challenge. But when that fact is found challenged, then, cogent evidence should be there to prove that cleaner in the truck, was genuinely present and none else was assisting the driver. In case of two drivers traveling in a truck simultaneously, it is impossible that they may have opted not to carry cleaner with them as cleaner had already accompanied the driver of the truck from Jamnagar to Vaso, Nature of evidence given by Kami [P.W..3], if appreciated in light of other evidence led by the prosecution, and absence of evidence of material witness Babusing, takes us to a conclusion that Kanu[P.W.3] may not have-seen the incident as claimed by him and he may have been planted as eye witness to the incident 14. As per the case of the prosecution, Babusing undisputedly was there in the truck as a second driver, he had boarded the truck from Vaso. So, prosecution could have examined Babusing as material witness of the incident, because, learned trial Judge has attempted to link the accused with the crime also on the point that the deceased was last in the company of the accused This principle, according to us, has been incorrectly applied in the present case, because, it is the say of the. prosecution that one of the eye witnesses has witnessed the incident i.e. infliction of giving knife blows being given to the deceased by the accused. Principle of last seen together would apply in cases where nobody has seen the person deceased at any time and place after that point of time i.e., last appearance of the deceased in the company of the accused. Principle of last seen together would apply in cases where nobody has seen the person deceased at any time and place after that point of time i.e., last appearance of the deceased in the company of the accused. Last appearance of the deceased in the company of the accused and disappearance thereafter is important Non-examination of such evidence, that too, of cogent nature would add strength in the case of prosecution. Here, the case of prosecution is based on different set of facts. Here, claim of the prosecution is that the deceased was in the company and with the accused and he was inflicted number of blows by the accused and was made to die. So, that principle of “last seen together” would not apply as discussed by the trial court. Nothing has been found from the spot of the incident such as half burnt cigarette or its but etc. This is not important but is relevant, because, it is claimed by Kami [P.W.s] that they were returning after smoking cigarette and at that time, accused started giving blows to the deceased and he witnessed the incident It is his claim that he attempted to intervene arid the accused attempted to chase him and he [Kanu-P.W..3] escaped from the spot. In this situation, statement of independent witness from the spot of the incident could have been recorded and he could have been examined. Persons who had shops there or hotels may have seen the incident, wherein, one person had chased another person with open knife and thereafter the person holding the knife suddenly disappeared from the scene. But the happening of incident could have been brought on record by the prosecution in view of the story told while prosecuting the accused, 15. Some conflict in the medical evidence is also pointed out by Mr. Amin that the medical evidence clearly shows that the injuries on the body were caused by sharp edged instrument and not blunt one. It is pointed out that there was no satisfactory evidence of this aspect on record. The evidence regarding recovery of knife [muddarnal article 10] from the accused is far from truth. It is pointed out that in the panchnama, it is clearly stated that point of knife was totally blunt Mr. It is pointed out that there was no satisfactory evidence of this aspect on record. The evidence regarding recovery of knife [muddarnal article 10] from the accused is far from truth. It is pointed out that in the panchnama, it is clearly stated that point of knife was totally blunt Mr. Amin has submitted that the learned trial Judge has erred in not believing doctor’s testimony regarding injuries and has presumed that knife might have become blunt due to repeated blows on the body of the deceased It is also pointed out that the learned trial Judge was of the opinion that the blows might have landed on the ribs and hence, it might have become blunt. This presumption is highly improbable and cannot be accepted as submitted by Mr. Amin. .Learned trial Judge, has stated that broken point of knife found at the time when the same was recovered may be the result of number of blows given. Human body is not hard or blunt substance. If a knife dashes with a very hard bone, then, very tender sharp-edge may get bent, but would not get broken, Learned trial Judge has gone to the extent of saying that the knife may have been broken when blows were being inflicted. Considering the number of blows and nature of injuries on the person of the body, it is clear that after certain fatal blows, the deceased would not have been able to move from the spot where he was assaulted. So, broken piece of knife either would have been found from the spot of incident or from the body of the deceased. On the contrary, discussion of the medical evidence gives an impression that learned trial Judge perhaps was also convinced that the injuries found on the body of the deceased might not have been caused by such broken knife. 16. In the background of the medical evidence led and discussed by the learned trial Judge, whether it would be proper to accept the evidence led by the prosecution that this very knife was tendered by the accused voluntarily before the police in the next morning. According to us, it would be risky to accept the version of the police official that accused had voluntarily surrendered to the police, station with blood stained knife. According to us, it would be risky to accept the version of the police official that accused had voluntarily surrendered to the police, station with blood stained knife. Hostility shown by the panch witnesses in this regard affects substantially the case of the prosecution and also the version of the officer to whom the accused had voluntarily surrendered. 17. Blood stains on the cloth of the accused is relevant and material piece of evidence as submitted by the learned APP. But here, the blood sample of the accused was not taken. It is not necessary that in all cases, blood sample of the accused should be taken, but when it comes to the question of satisfactory explanation whether it has been given by the accused or not and the Court intends to link the accused with the crime only on this count saying that this circumstance is material, cogent and convincing circumstance, then, other possibility is required to be ruled out Therefore only, this Court and the Apex Court in number of cases have held that having stains of blood on the cloth of the accused is not evidence sufficient to link the accused with the crime. Here, according to us, the case of the prosecution is based mainly on the evidence of eye witness examined by the prosecution, i.e. Kanu [P,W,3J and the evidence of Kanu[P.W.3] is found unreliable and when he appears to be a planted witness, it would be risky to link the accused with the crime on the. strength of the opinion evidence given by the Serological Examiner. It is relevant here also to note that the panchas before, whom clothes were allegedly recovered have not supported the case of the prosecution. strength of the opinion evidence given by the Serological Examiner. It is relevant here also to note that the panchas before, whom clothes were allegedly recovered have not supported the case of the prosecution. This also makes some effect onthe strength of the evidence received and led during the course of trial qua the blood stains found on the clothes of the accused in short, according to us, this is a case where the learned trial Judge ought to have given benefit of doubt to the accused saying that it would be risky to accept the version of Kanu as go spel ‘truth and it is not safe to rely upon the evidence of a police officer who has stated that the accused had surrendered before, him voluntarily and at the time of his surrender, his clothes were blood stained and therefore, the same have been recovered on the spot in presence of the panchas. 18. In view of the discussion above and the reasons assigned, the appeal requires to be allowed. The appeal is, therefore, allowed Judgment and order dated 19.2.1991 rendered by the Additional Sessions Judge, Nadiad in Sessions Case No, 75 of 1990 is hereby quashed and set aside. As the evidence led by the prosecution is not found satisfactory or cogent to link the accused with the crime and he is given benefit of doubt, the appellant accused is acquitted from all the charges Ievelled against him. The accused is on bail and therefore, his bail bonds stand discharged. Fine paid, if any, be refunded to the accused on proper identification. Rest of the order passed by the trial court does not require to be disturbed, more particularly in reference to the disposal of muddamal. * * * * *