Judgment J.R. Vora, J.—Both the instant appeals have arisen from the same judgment and order delivered by learned Additional Sessions Judge, Sabarkantha at Himmatnagar, on 29.07.2000, in Sessions Case No. 41/1998. 2. In all eight accused were charge-sheeted for the offences punishable under Sections 120-B, 147, 148, 149, 504, 506(2), 341 and 302 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. However, when the charge was framed, out of eight accused, accused No. 5 - Kacharabhai Revabhai Chamar died and remaining seven accused faced the trial. 3. Vide judgment and order impugned, learned trial Judge was pleased to convict the accused No. 1 - Dahyabhai Revabhai Chamar, accused No. 2 - Amrutbhai Revabhai Chamar and accused No. 3 - Natvarbhai Revabhai Chamar for the offence punishable under Section 302 of the Indian Penal Code and each of these accused came to be convicted and sentenced by the trial Judge for imprisonment of life and to pay fine of Rs. 2,000/-, in default, to undergo simple imprisonment of three months. Against this judgment and order, all the three accused preferred Criminal Appeal No. 917/2000 under Section 374 of the Criminal Procedure Code against their conviction and sentence. 4. While accused No. 4 - Alakhabhai Khatubhai Chamar, accused No. 5 - Motibhai Revabhai Chamar, accused No. 6 - Kaliben w/o. of Valabhai Revabhai Chamar and accused No. 7 - Savitaben w/o. of Dahyabhai Revabhai Chamar were acquitted by the trial Court for whole the charges levelled against them through benefit of doubt and hence, the State preferred Criminal Appeal No. 1007/2000 against these four accused under Section 378 of the Criminal Procedure Code challenging their acquittal. 5. Prosecution case briefly stated, the incident in question occurred on 17.12.1997 at Village : Navalpur of Himmatnagar Taluka. The incident, according to the prosecution case, occurred at 21.15 hours. Complainant - Jugatsinh Jitusinh, aged about 28 years was staying at Village : Navalpur and was at the relevant time Deputy Surpanch of Navalpur Gram Panchayat. In population of Village : Navalpur, Harijans, Muslims, Darbars, Rabaris were staying. There were about 20 houses of Harijans. Before three months of the incident, there was a dispute between Harijans and Muslims about right of way in the field and about the boundaries. When the incident occurred, that dispute was still going on. In population of Village : Navalpur, Harijans, Muslims, Darbars, Rabaris were staying. There were about 20 houses of Harijans. Before three months of the incident, there was a dispute between Harijans and Muslims about right of way in the field and about the boundaries. When the incident occurred, that dispute was still going on. Complainant - Jugatsinh Jitusinh belonged to Darbar community and Darbar community had no disputes or any rivalry with any other community. On earlier day of the incident i.e. on 15.12.1997, buffalo belonged to one Akbarbhai Khanushia had died. It appears that, on account of the disputes with Harijans, they did not remove the deadbody of the buffalo, but Harijans believed that the deadbody of buffalo belonged to Akbarbhai Khanushia was removed in the tractor with the assistance of the complainant Jugatsinh Jitusinh. On 16.12.1997, while complainant Jugatsinh Jitusinh was going towards his field from the village, was accosted by accused No. 1 - Dahyabhai Revabhai Chamar and his wife accused No. 7 - Savitaben, on the road and they told the complainant that why the complainant had assisted in removing the deadbody of the buffalo belonged to Akbarbhai Khanushia and staked the same in tractor. According to the complainant, at that time both of these accused caught hold of him by his neck and he was threatened by both these accused that a complaint against Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 would be filed against them, they would see the complainant and family members of the complainant. The complainant thought that this was very small matter and did not file any complaint. On the day of the incident, complainant - Jugatsinh Jitusinh was at his residence, at that time, at about 8.30 p.m., Aslambhai Majidbhai Khanushia and Ibrahimbhai Rashidbhai Khanushia, who were eye-witnesses in the case, came to the residence of the complainant to inquire about the incident of previous day with the accused. Thereafter, Aslambhai Majidbhai Khanushia and Ibrahimbhai Rashidbhai Khanushia started to go to their houses and complainant also accompanied them to go in the village. All the three persons were talking amongst themselves, while they were passing upon the way of Harijan Maholla at about 21.15 hours, a crowd of some persons came towards the road on which these three persons including the complainant were going. The crowd was uttering about killing someone. All the three persons were talking amongst themselves, while they were passing upon the way of Harijan Maholla at about 21.15 hours, a crowd of some persons came towards the road on which these three persons including the complainant were going. The crowd was uttering about killing someone. At very same time, cousin brother of the complainant Sardarsinh, who is deceased in this case, was coming from his field and was going towards his residence, which the complainant and other two persons noticed in the electric light. At that time, the persons of crowd came on the road and prevented Sardarsinh to proceed towards his house. Complainant noticed that in all eight accused whose names are given in the FIR were there. According to the complainant, accused - Dahyabhai Revabhai Chamar, Amrutbhai Revabhai Chamar and Natvarbhai Revabhai Chamar had axes with them, accused - Alakhabhai Khatubhai Chamar had a dhariya with him, accused - Kacharabhai Revabhai Chamar had a stick with him. It is necessary to note here that before framing of the charge, accused Kacharabhai Revabhai Chamar had died and, therefore, the charge was framed against seven accused, out of the eight accused. As per further prosecution story and, according to the complainant was that, accused Motibhai Revabhai Chamar had a chain of iron, accused Savitaben and accused Kaliben both were with the other accused and all of the accused were shouting “kill kill” and they attacked upon the deceased Sardarsinh. It is the further story of the prosecution that when all the accused attacked upon the deceased Sardarsinh, he started shouting and, therefore, the complainant and other two persons accompanying him rushed towards deceased Sardarsinh, on the spot. All the three noticed in the electric light that accused No. 1 - Dahyabhai, accused No. 2 - Amrutbhai and accused No. 3 - Natvarbhai inflicted one blow each of an axe on the head of Sardarsinh. Others were beating Sardarsinh with kicks and fists and, therefore, Sardarsinh had fallen down on the ground. Complainant and other two witnesses also noticed that at that juncture, accused No. 7 - Savitaben Dahyabhi and accused No. 6 - Kaliben Valabhai were sprinkling chilly powder on the face of the deceased. When complainant and other two persons accompanying him reached on the spot and when they shouted, all the accused ran away from the scene of offence. Complainant and other two witnesses also noticed that at that juncture, accused No. 7 - Savitaben Dahyabhi and accused No. 6 - Kaliben Valabhai were sprinkling chilly powder on the face of the deceased. When complainant and other two persons accompanying him reached on the spot and when they shouted, all the accused ran away from the scene of offence. Deceased Sardarsinh was seriously injured on his head by axe blows and those injuries were bleeding. Therefore, deceased Sardarsinh was shifted to Himmatnagar Civil Hospital in Maruti Car belonged to Rashidbhai Daudbhai. A complainant had accompanied Sardarsinh upto Himmatnagar Hospital and from there, on advice being given to him by a female, he went to Himmatnagar Town Police Station to give his complaint. According to the prosecution case, at about 23.00 hours on 17.12.1997, complainant gave his complaint to P.W. 9 - Rameshbhai Bhalabhai, the then Police Inspector of Himmatnagar Town Police Station. The complaint was recorded and crime was registered under Section 307 etc. of the Indian Penal Code. It appears that Sardarsinh was unconscious, he reached at Civil Hospital and, therefore, though Investigating Officer Rameshbhai Bhalabhai gave a yadi to record dying declaration of the deceased but it could not be recorded. On the next day i.e. on 18.12.1997, the investigation was started by Rameshbhai Bhalabhai and a panchnama of scene of offence was drawn as well as he recorded the statements of the witnesses. It further appears from the prosecution case that the deceased Sardarsinh reached, according to the prosecution, at Civil Hospital, at 8.45 p.m. and P.W. 4 - Dr. Karunaben Patel, Medical Officer treated Sardarsinh. However, according to this Doctor, injuries were grievous and were required surgical intervention. The patient was then sent to Civil Hospital, at Ahmedabad. It appears from the prosecution case that deceased Sardarsinh, thereafter, live from some days and ultimately, expired on 01.01.1998 in Ahmedabad Civil Hospital. P.W. 7 Natvarbhai Prabhudas Patel, Medical Officer of Ahmedabad Civil Hospital performed postmortem of deadbody on 01.01.1998 at about 7.45 hours. According to him, the cause of death was head injury. It appears that a crime, thereafter, was converted in 302 and was investigated by Investigating Officer P.W. 9 - Rameshbhai Bhalabhai. Accused were arrested. Accused voluntarily discovered the weapons used in the crime and, therefore, a panchnama to this effect was drawn. According to him, the cause of death was head injury. It appears that a crime, thereafter, was converted in 302 and was investigated by Investigating Officer P.W. 9 - Rameshbhai Bhalabhai. Accused were arrested. Accused voluntarily discovered the weapons used in the crime and, therefore, a panchnama to this effect was drawn. Muddamal including blood found from scene of offence, weapons and the cloths of the deceased were sent to Forensic Science Laboratory. After receiving the opinion of Forensic Science Laboratory, a charge-sheet came to be filed in the Court of learned Judicial Magistrate, First Class and in turn, it was committed to the Court of Sessions, District : Sabarkantha, at Himmatnagar and was made over to the trial Court. 6. On 04.01.1999 vide Exhibit 7, a charge of the above said offences was framed in all against the seven accused by the trial Court. Accused pleaded not guilty and hence, prosecution has examined as many as nine witnesses and produced on record voluminous documentary evidence, which are as under. PROSECUTION WITNESSES : P.W.1 Jugatsinh Jitusinh, Complainant Exhibit 18 P.W.2 Aslambhai Majidbhai Khanushia, Witness Exhibit 22 P.W.3 Ibrahimbhai Rashidbhai Khanisia Witness Exhibit 24 P.W.4 Dr. Karunaben Rameshbhai Patel, Medical Officer Exhibit 26 P.W.5 Ismailbhai GulambhaiDhaga, Panch Witness Exhibit 29 P.W.6 Mahammadbhai Hanifbhai Dhaga, Panch Witness Exhibit 31 P.W.7 Dr. Natvarbhai Prabhudas Patel, Medical Officer Exhibit 40 P.W.8 Savabhai Hirabhai Raval, Panch of Scene of Offence Exhibit 42 P.W.9 Rameshbhai Bhalabhai Patel, Investigating Officer Exhibit 45 DOCUMENTARY EVIDENCE : 1 Complaint of Jugatsinh Jitusinh Exhibit 19 2 Inquest Panchnama Exhibit 33 3 Panchnama of scene of offence Exhibit 30 4 Panchnama of examination of body of accused Nos. 1 to 7 5 Panchnama of examination of body accused Savitaben 6 Discovery panchnama under Section 27 of the weapons voluntarily used by the accused at the time of incident. Exhibit 32 7 Panchnama of Production of cloth of deceased Sardarsinh Exhibit 36 8 Yadi of treatment to injured Sardarsinh Exhibit 28 9 Injury certificate of deceased Sardarsinh, Civil Hospital, at Himmatnagar. Exhibit 27 10 Postmortem Note of deceased Sardarsinh Exhibit 41 11 Copy of report of CJM to include Section 302 in complaint. Exhibit 32 7 Panchnama of Production of cloth of deceased Sardarsinh Exhibit 36 8 Yadi of treatment to injured Sardarsinh Exhibit 28 9 Injury certificate of deceased Sardarsinh, Civil Hospital, at Himmatnagar. Exhibit 27 10 Postmortem Note of deceased Sardarsinh Exhibit 41 11 Copy of report of CJM to include Section 302 in complaint. Exhibit 42 12 Forwarding Note of muddamal Exhibit 46 13 Receipt of F.S.L. regarding receiving the muddamal Exhibit 48 14 Report of Forensic Science Laboratory Exhibit 49 15 Report of Serologist Exhibit 50 16 Copy of FIR Exhibit 51 7. After evidence of prosecution was over, incriminating circumstances appearing against each of the accused in the evidence, was brought to the notice of each of the accused and statement was recorded under Section 313 of the Criminal Procedure Code. The case of each of the accused is of total denial in the further statements. 8. Learned trial Judge, thereafter, heard the prosecution and defence and came to the above conclusion that accused No. 1 - Dahyabhai Revabhai Chamar, accused No. 2 - Amrutbhai Revabhai Chamar and accused No. 3 - Natvarbhai Revabhai Chamar were guilty for the offence punishable under Section 302 of the Indian Penal Code and each of the accused No. 1 to 3 was sentenced as aforesaid. While learned trial Judge concluded that accused No. 4 Alakhabhai Khatubhai Chamar, accused No. 5 - Motibhai Revabhai Chamar, accused No. 6 - Kaliben w/o. of Valabhai Revabhai Chamar and accused No. 7 - Savitaben w/o. of Dahyabhai Revabhai Chamar were found not guilty as the prosecution had failed to prove any of the charges levelled against them beyond reasonable doubt, therefore, they were acquitted. Hence, these appeals before this Court. 9. It would be necessary to note the evidence of the prosecution as recorded during the trial. 10. P.W. 1 - Jugatsinh Jitusinh, complainant, has been examined at Exhibit 18. He deposed that he knew all the accused as they belonged to his village. Deceased Sardarsinh happened to be his cousin brother. In their village, community of Harijans, Muslims, Darbars, Ravals etc. were staying. Before three months of the incident in question, the dispute about the way of field was going on between Harijans and Muslims of the village. He deposed that he knew all the accused as they belonged to his village. Deceased Sardarsinh happened to be his cousin brother. In their village, community of Harijans, Muslims, Darbars, Ravals etc. were staying. Before three months of the incident in question, the dispute about the way of field was going on between Harijans and Muslims of the village. On account of this dispute, there was enmity between Harijans and Muslims, but he or his family had no enmity with any one or any community of the village. On 15.12.1997, a buffalo belonged to Akbarbhai Khanushia had died and he narrated the incident occurred on 16.12.1997 that accused No. 1 - Dahyabhai Revabhai Chamar and his wife accused No. 7 - Savitaben Dahyabhai Chamar accosted him. The witness further deposed that on 17.12.1997, he was at his house, Aslambhai Khanushia and Ibrahimbhai Rashidbhai both came to his residence to inquire regarding the incident with accused which had occurred about the buffalo of Akbarbhai. They took tea at his residence. After that Aslambhai Khanushia and Ibrahimbhai Rashidbhai both started to go to their houses and he wanted to go the village and he also accompanied them. The witness further stated that they were walking on public road of Harijan Vas and passing through that public road, at that time near the gate of Harijan Vas, they heard shouting “kill kill”. When he noticed, he found that his cousin brother deceased Sardarsinh was coming towards the residence from his field. It was night at that time and in light of electric, the witness noticed a crowd coming from Harijan Vas consisting of all eight accused. Out of these eight accused, accused Dahyabhai Revabhai Chamar, Amrutbhai Revabhai Chamar and accused Natvarbhai Revabhai Chamar had axes with them, accused Alakhabhai Khatubhai Chamar had a dharia and deceased accused Kacharabhai Revabhai had a stick with him, accused Motibhai Revabhai Chamar had a chain of cycle with him. The witness noticed that accused - Dahyabhai Revabhai Chamar, accused - Amrutbhai Revabhai Chamar and accused Natvarbhai Revabhai Chamar each inflicted one blow of axe on the head of deceased, others were beating with kicks and fists, ladies accused Savitaben and Kaliben were sprinkling chilly powder in the eyes of the deceased. When he went near his brother, he found that the blood was oozing from his head. When he went near his brother, he found that the blood was oozing from his head. At that time, Aslambhai Khanushia and Ibrahim Khanushia were with him. Aslambhai Khanushia and Ibrahim Khanushia went in the village and brought a Maruti Car belonged to Rashidbhai and in the said Maruti Car, Sardarsinh was shifted to hospital at Himmatnagar. According to this witness, in Civil Hospital one female advised him that his brother was serious and, therefore, he should give the complaint. Therefore, he went to Himmatnagar Town Police Station and offered his complaint which he identified and produced on record at Exhibit 19. For the motive of the incident, the witness stated that buffalo belonged to Akbarbhai had died and he had been to assist in removing the deadbody of buffalo in tractor. He stated that in fact, he had not assisted in removing the deadbody of buffalo. The witness stated that his brother was shifted in Ahmedabad Hospital where he died on account of injuries. He identified the cloths of his deceased cousin brother and axes of muddamal Article Nos. 4, 5 and 6 and other weapons dharia, stick etc. He stated that the scene offence was shown by him to the police and at the scene of offence, there was blood on the earth and the chilly powder was found. In cross-examination, he was asked about Mubarakbhai who belonged to brother of Aslambhai, Mubarakbhai was of Surpanch. He admitted that Mubarakbhai was nephew of Akbarbhai. He admitted that the dispute about the way of field was between Aslambhai, Ibrahimbhai, Akbarbhai and Mubarakbhai at one side and accused No. 1 and his family at the other side. It was the claim of the accused that near the field of Muslims, there was a way and Aslambhai etc. denied the claim. He also admitted that for this reason, there were earlier litigations filed like police complaint between the parties. He admitted that on 27.08.1997, for cutting of the hedge of his field, Aslambhai Majidbhai Khanishia had file a complaint. He admitted that in that case, he was panch and the witness. He admitted that though in complaint, he was not shown as witness, but he was taken as additional witness. He admitted that in the present case in the complaint, he had stated his surname to be Solanki. He admitted that in that case, he was panch and the witness. He admitted that though in complaint, he was not shown as witness, but he was taken as additional witness. He admitted that in the present case in the complaint, he had stated his surname to be Solanki. He also admitted that in earlier case about cutting of the hedge, he had stated his surname to be “Khant”. He admitted that deceased was Sardarsinh Solanki and he was aged about 65 to 70 years at the time of the incident. He also admitted that deceased was Solanki by caste and that he was “Khant” by caste and for posing to be cousin brother of the deceased, he narrated his surname to be Solanki. He also admitted that accused Dahyabhai had filed a complaint against the Prevention of Atrocities Act against Aslambhai and in the said complaint, the name of Akbarbhai was also appearing. In examination-in-cross, he produced a copy of the said complaint at Exhibit 20. He admitted that this Akbarbhai was practicing Advocate and had been President of Taluka Panchayat and police had not arrested said Akbarbhai in the said crime for which the present accused had agitated, not only representing before the Government authorities, but to go on hunger strike. He admitted that there was narrow lane road at the scene of offence and there was a hedge on one side on that road and that road was East and West direction and on Northern direction, this narrow land takes turn from the houses of Harijans. He was asked about residential houses situated around the scene of offence, he admitted that at about 25 feet from the scene of offence, there was a house of Kamubhai Dhaga. He admitted that northern limits of this house was abutting the place of offence. He also admitted that on northern of this narrow lane, the houses of Aslambhai, Mubarakbhai and Akbarbhai were situated. He admitted that Savitaben had also filed a complaint as a cross case and in the said case, he was an accused and which case was pending before the same Court. The incident occurred on 16.12.1997 about threatening him by the accused No. 1 and his wife was noticed by others and Akbarbhai and Aslambhai also. He had conveyed this incident to other persons also, but he had not filed any complaint. The incident occurred on 16.12.1997 about threatening him by the accused No. 1 and his wife was noticed by others and Akbarbhai and Aslambhai also. He had conveyed this incident to other persons also, but he had not filed any complaint. He denied that no such incident had taken place. He admitted that behind the Maholla of Harijan, the Maholla of Kshatriya was situated. From his house entering into narrow road, the place of offence was at a distance about 25 to 30 feet and on entering that narrow road, first he sighted Sardarji. He witnessed the incident from a distance of 25 feet. He stated that out of three muddamal articles, he could not say which axe was with which accused. But he stated that muddamal article No. 6 axe was with accused Dahyabhai Revambhai, muddamal article No. 5 was with Amrutbhai Revabhai. He stated that he could not say that which accused inflicted which blow on the head of the accused. The witness stated that according to him, all the three accused inflicted axe blow on back side of the head of the deceased. According to this witness, all the three blows were horizontal. He also admitted that his brother Sardarsinh was standing, when axe blows were inflicted upon him. About other accused, he stated that which accused, how much had beaten the deceased, he could not say. He had noticed 4-5 marks on the body of the deceased on abdomen part. When he reached near his brother, deceased was not in a position to speak. This crowd of the accused were heard by other residence of the village. He admitted that his brother was taken in car from the gate of the village. He denied the fact that he found deceased Sardarsinh at the gate of village and from there, he was taken to hospital. He admitted that his brother was admitted to Civil Hospital at 8.45 p.m. He denied the fact that Akbarbhai, Advocate accompanied him, while he gave the complaint and he in fact dictated the complainant. According to him, he gave the complaint at about 9.45 p.m. and after giving the complaint, he had been to Civil Hospital, Himmatnagar and returned his home at about 2.00 hours. The police had been to his resident at about 2.30 hours. According to him, he gave the complaint at about 9.45 p.m. and after giving the complaint, he had been to Civil Hospital, Himmatnagar and returned his home at about 2.00 hours. The police had been to his resident at about 2.30 hours. On the next day, at 8.30 a.m, police had come at his resident and inquired from him. He admitted that from their Maholla, when they entered in the narrow lane road, there was a cabin of one Bachubhai and whose cabin ordinarily remained open till 10.00 p.m. He denied the fact that on the same day, same night at about 10.30 p.m., he and others had attacked the accused and caused injuries. In further cross-examination, an attempt is made by the defense that he had enmity with Natvarbhai and accused. He denied the suggestion that he had not noticed the incident. He admitted that removing the dead animal was not the work of Darbar and removing the dead bodies of the animals is ordinarily performed by Harijans. He had not talked, about the incident of 16.12.1997, to Aslambhai and Ibrahimbhai nor to anybody. He emphatically stated that when they reached near the scene of offence, there was electric light. After the incident, the whole village was gathered there. He denied that he was falsely deposing against the accused. 11. P.W. 2 - Aslambhai Majidbhai Khanushia at Exhibit 22 deposed that the incident occurred on 17.12.1997 and before that day, the accused Dahyabhai had threatened complainant - Jugatsinh in respect of removal of deadbody of buffalo belonged to Akbarbhai. In this respect, he had been to the house of Jugatsinh and, thereafter, he and P.W. 3 - Ibrahimbhai who were returning from the house of the complainant and the complainant also accompanied them. According to witness, when all of three on foot, reached near the road passing near Harijan Maholla, they heard shouts “kill kill”. Those shouts were coming from the accused. At that juncture, deceased Sardarsinh was coming to his house from his field, the accused restrained him. This witness also stated that accused Nos. 1 to 3 had axes with them, accused Alakhabhai had a dharia with him, deceased Kacharabhai had a stick with him, accused Motibhai had a chain of cycle with him. Accused Nos. 1 to 3 inflicted one blow each on the head of Sardarsinh on account of which deceased Sardarsinh had fallen down. This witness also stated that accused Nos. 1 to 3 had axes with them, accused Alakhabhai had a dharia with him, deceased Kacharabhai had a stick with him, accused Motibhai had a chain of cycle with him. Accused Nos. 1 to 3 inflicted one blow each on the head of Sardarsinh on account of which deceased Sardarsinh had fallen down. In this scuffle, accused were shouting that “kill kill”. Other accused i.e. accused Nos. 4 and 7 were beating Sardarsinh with kicks and fist. Accused Savitaben and Kaliben were sprinkling chilly powder in the eyes of Sardarsinh. When all three went near Sardarsinh, they found that his injuries were profusely bleeding. Therefore, a Maruti car belonged to Rashid was summoned and Sardarsinh was shifted to Himmatnagar Civil Hospital. The complaint about this incident was given by Jugatsinh at Himmatnagar Town Police Station. There was a pole of electricity near the scene of offence and in the light, they had seen the incident. The witness was confronted with muddamal article which were identified by him. While in examination-in-cross, he was confronted with police statement, he admitted that he had stated that before three months of the incident, a dispute had arisen between Muslims and Harijans about the way in the field and Harijans had filed the complaint against Muslims and there was animosity between these communities on account of this. He admitted that about there are 100 residential houses of Muslims and none of the accused had any dispute with those 100 residential houses of Muslims. He denied the allegation that there was animosity between his family and family of the accused. He admitted ultimately that on 27.08.1997, accused No. 1 had filed a complaint under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against him and he had also filed a complaint against the accused party. A copy of the charge-sheet of the said case was confronted to him and he admitted that he had given a complaint about cutting of hedge. In a complaint filed by the accused - Dahyabhai, Akbarbhai was also an accused and on a question by the defence, this witness stated that he could not say as to whether Akbarbhai ever arrested in the said case. He admitted that Akbarbhai happened to be his uncle and Surpanch Mubarakbhai was his brother and Ibrahimbhai i.e. P.W. 3 was his cousin brother. He admitted that Akbarbhai happened to be his uncle and Surpanch Mubarakbhai was his brother and Ibrahimbhai i.e. P.W. 3 was his cousin brother. He stated that he did not know whether the accused had gone on hunger strike because police did not arrest Akbarbhai in the earlier case of Atrocity. There were good relations between Mr. P. I. Patel and Akbarbhai and due to which Akbarbhai was not arrested, has been denied by the witness. He also admitted that accused No. 1 - Dahyabhai filed a Civil Suit in the Court of Mamlatdar, bearing No. 12/1997 and when he was confronted with the copies of the orders. The witness admitted that Mamlatdar had given the stay against him about the way of the field and that order he produced at Exhibit 23. He admitted that complainant - Jugatsinh belonged to Khant caste. He could not say as to whether the surname of Sardarsinh was of Solanki. He denied the suggestion that the Sardarsinh was aged about 70 years, but he admitted that the deceased had no enmity at all with the accused. He deposed that complainant - Jugatsinh had conveyed to him about the threat administered by the accused in respect of removal of deadbody of the buffalo and this was conveyed by Jugatsinh on the very day of that incident at noon. According to this witness, he was going towards his house, he met Jugatsinh at that time, he talked about the incident of deadbody of buffalo. On the day of the present incident, he started from the house of the Jugatsinh at about 9.05 p.m., before that he sat about 15 minutes and took tea. He admitted that behind the Maholla of the accused, Maholla of Kshatriya was situated. He denied that there is a narrow lane for coming from Maholla of Kshatriya, but the witness stated that it is a public road. The witness denied that the distance between this road and Harijan Maholla, was about 25 feet to 30 feet. But this distance, according to this witness, was about 70 feet to 80 feet. He himself, Jugatsinh and Ibrahimbhai were walking, he heard first shout and at that time he was at a distance of 20 feet to 25 feet away from the incident and he found a crowd and there were 8-10 persons in the crowd and, thereafter, Sardarsinh appeared. He himself, Jugatsinh and Ibrahimbhai were walking, he heard first shout and at that time he was at a distance of 20 feet to 25 feet away from the incident and he found a crowd and there were 8-10 persons in the crowd and, thereafter, Sardarsinh appeared. The witness deposed that when Sardarsinh was beaten, he was away from the incident only for about 5 feet. First blow of axe was given by accused No. 1 - Dahyabhai and, thereafter other two accused also inflicted one by one axe blows. Accused - Dahyabhai had given a blow of an axe on the back portion of the head of Sardarsinh and other two persons had also inflicted two blows on the back side of the head of Sardarsinh. He did not attempt to rescue on account of fear. On account of blows with axe, Sardarsinh had fallen down on the ground. He attempted to catch hold of the accused, but they were kicking and fisting Sardarsinh and the other accused were beating Sardarsinh with kicks and fists. According to this witness, at least 20 kicks and about 30 fists were given to Sardarsinh by the remaining accused and all those blows were given on the back portion of Sardarsinh. Sardarsinh had fallen down on the ground and, thereafter, female accused were sprinkling chilly powder in the eyes of deceased Sardarsinh. The whole body of Sardarsinh was bleeding. After 10 minutes of the incident, Sardarsinh was taken to hospital in a car. He himself, Akbarbhai and Ibrahimbhai were in a car, except that nobody was there in the said car. He denied the fact that Sardarsinh was taken in a car from the gate of the village. He denied the fact that Sardarsinh was admitted to the Hospital at 8.45 p.m. at Himmatnagar Civil Hospital. He identified the muddamal articles and stated that muddamal article No. 4 axe was with accused –Dahyabhai, muddamal article No. 5 axe was with accused Amratbhai and muddamal article No. 6 axe was with accused Natvarbhai. He denied the suggestion that the scene of offence was situated near narrow lane, but he stated that the scene of offence was adjoining the public road. He admitted that he did not inform the family members of Sardarsinh. He denied the suggestion that the scene of offence was situated near narrow lane, but he stated that the scene of offence was adjoining the public road. He admitted that he did not inform the family members of Sardarsinh. At the place of the incident, 10 feet away from the scene of offence in his field, there was electric pole and a tube light was fixed in that pole. He denied the fact that for about one year before the incident, the whole street lights of the village were not working. He denied the suggestion that none of the accused had participated in the incident. He also denied the fact that Savitben had filed a complaint before the police, after this incident, at about 10.30 p.m. Kshatriya had beaten the accused with dharia. In the cross-examination of accused No. 3, 7 and thereafter accused No. 4, he denied the suggestion made and attempt has been made by the accused that at the time of the incident, the scene of offence was being a public road, was used by so many persons in the evening or by vehicles also. 12. Likewise P.W. 3 - Ibrahimbhai Rashidbhai Khanushia, Exhibit 24 submitted the story that after taking tea at the residence of Jugatsinh, while they were returning, they found a crowd of 20-25 persons. While they reached near Harijan Vas, at that time, they found Sardarsinh was coming from his filed and in the tube light, it was noticed by them that accused were there with axes and dharia etc. and accused Nos. 1 and 2 inflicted axe blow on the head of Sardarsinh. Female accused were sprinkling chilly powder in the eyes of Sardarsinh. Aslambhai accosted, and the crowd of accused ran away from the spot. Thereafter, Sardarsinh was shifted to the Civil Hospital at Himmatnagar. Jugatsinh had filed a complaint in Himmatnagar Town Police Station. Thereafter, for further treatment, Sardarsinh was shifted at Ahmedabad Civil Hospital where he died. He identified muddamal articles shown to him. In the examination-in-chief, this witness attributes two blows inflicted by two accused No. 1 and 2 by axes upon the head of deceased Sardarsinh. In examination-in-cross, he admitted that Aslambhai, P.W. 2 happened to be his cousin brother and one Akbarbhai happened to be his uncle. He also admitted that the dispute was pending between the accused and Akbarbhai about the way of the field. In examination-in-cross, he admitted that Aslambhai, P.W. 2 happened to be his cousin brother and one Akbarbhai happened to be his uncle. He also admitted that the dispute was pending between the accused and Akbarbhai about the way of the field. He did not know the incident about threatening the complainant by the accused in respect of deadbody of buffalo and he was called by Aslambhai to go to the house of Jugatsinh. When they reached near the scene of offence, it was about 9.15 p.m. He admitted that from the Maholla of Kshatriya to reach to the scene of offence, one has to go to narrow lane known as “Nalia”. He denied the fact that the scene of offence was 15 to 20 feet away from the Nalia. According to this witness, the scene of offence was situated 300 to 400 feet away from the said Nalia which was near the Maholla of Kshatriya. He noticed the incident at a distance of 10 feet away. According to this witness, two accused i.e. accused No. 1 and 2 one by one had given blows of axe upon the head of Sardarsinh and thereafter, Sardarsinh had fallen down. He had noticed the injury on the head of the decesaed. The blows given by both the accused were in horizontal direction. Thereafter, all other accused started giving fists and kicks to Sardarsinh, who was lying on his stomach. He denied the fact that the scene of offence was in Nalia, a narrow lane. Again he changed his version that the scene of offence was situated in Nalia. Sardarsinh was speaking till he was shifted to Civil Hospital at Himmatnagar. He denied the suggestion that when Sardarsinh was shifted to Himmatnagar Civil Hospital, his uncle Akbarbhai had accompanied him. He also admitted that Sardarsinh had not boarded the Maruti car right from the scene of offence, though he denied that Sardarsinh was boarded in the Maruti car from the gate of village. In Para-4 of his examination-in-chief, the defence was asked certain contradictions about his statement before the police that he omitted the facts before the police that he had seen the incident in tube light. In further cross-examination by accused No. 3, 7 and 4, he stated that they had tried to call the relatives of Sardarsinh and he had stayed in the Civil Hospital at Himmatnagar for about an hour. In further cross-examination by accused No. 3, 7 and 4, he stated that they had tried to call the relatives of Sardarsinh and he had stayed in the Civil Hospital at Himmatnagar for about an hour. The police had not visited the hospital nor the police had informed by anybody. 13. P.W. 4 - Dr. Karunaben Rakeshbhai Patel, examined at Exhibit 26 deposed that she examined the deceased first in point of time at Himmatnagar Civil Hospital. According to her, on 17.12.1997, she was on duty as a Medical Officer in Himmatnagar Civil Hospital, on that day, at 8.45 p.m., Sardarsinh was brought to her with police yadi. She had given the primary treatment to injured Sardarsinh and, thereafter, he was referred to Civil Hospital at Ahmedabad at about 12.05 a.m. In history, the son of injured has stated that the opposite party had beaten him at about 8.15 p.m. The patient was unconscious, when he was brought before her and the patient was vomiting. She found the chilly powder in the right eye of the patient. There was bleeding on right side ear and she had found following injuries. 1. CLW on Lt. point of Rt. Eyebrow 0.7cm x 0.5 cm x 0.3 cm , Skin deep, Bleeding. 2. CLW on Lt. side of parietal bone 6 cm x 3 cm x 0.5 cm, Bone Deep, Bleeding. 3. CLW on Rt. occipitoparietal region 1 cm x 0.2 cm x 0.2 cm, Skin Deep, Bleeding. 4. CLW on Lt. parieto temporal region 3 cm x 0.3 cm x 0.3 cm, Skin Deep, Bleeding. 5. Parietal oedema on Lt. eye black eye pupils - BE Rt. According to Doctor, X-Ray of skull was taken. On the mid line of this skull, there was a fracture in linear nature and there were in all three fractures. He was referred to Surgical Ward. Doctor further stated that according to her opinion, those injuries could be caused by hard, blunt and sharp cutting weapons. Out of the above injuries, injury Nos. 2 and 4 were grievous in nature and sufficient in ordinary course of nature to cause death, if no proper treatment would be available. She produced a certificate of the injury at Exhibit 27. Out of the above injuries, injury Nos. 2 and 4 were grievous in nature and sufficient in ordinary course of nature to cause death, if no proper treatment would be available. She produced a certificate of the injury at Exhibit 27. She stated that the injuries could be caused by axe of muddamal and further stated that in fact, she has received police yadi afterwards which she produced at Exhibit 28. In her cross-examination, she stated that she could not say that after what time, the patient would be unconscious, after he received injuries. Injury Nos. 2 to 5 was also caused by hard and blunt substance. She corrected herself about the measurement of the injury. The injury No. 2 which was described to be measuring 0.3 cm, but in fact according to her it was 3 cm. She stated that she had brought the case papers and in case papers, the measures of the injury No. 2 was stated to be 0.3 cm. She admitted that the depth and measurement of the other injuries were also like injury No. 1. She denied the suggestion that injury Nos. 2, 3 and 4 could be caused by blunt substances. She stated that width and depth of injuries depends upon force by which the injuries might be inflicted. If the blow is inflicted by sharp cutting instrument, there are possibility to cut wounds also. She denied the suggestion that if sharp cutting instrument is used then there would be only cut wound. She denied the suggestion that injury Nos. 1 to 4 could be caused by only hard and blunt substances and not by muddamal article axe. She stated that the age of the patient was about 60 years. She stated that it was possible that if somebody was dashed with vehicle, such injuries could be caused. She admitted that this patient was in her charge on 17.12.1997 from 8.45 p.m. to 12.05 a.m. The history of the incident was given by the son of the patient. She could not produce any documentary evidence in this support. She stated that according to her, the age of injuries were half an hour, earlier to when she examined the patient. Measurement of injuries which she described, was according to her opinion. 14. She could not produce any documentary evidence in this support. She stated that according to her, the age of injuries were half an hour, earlier to when she examined the patient. Measurement of injuries which she described, was according to her opinion. 14. P.W. 5 - Ismailbhai Gulambhai Dhraga examined at Exhibit 29, is a Panch of panchnama at Exhibit 30 of the scene of offence. He has not supported the prosecution case and has been confronted with the panchnama by the prosecution. 15. P.W. 6 - Mahammadbhai Hanifbhai Dhraga examined at Exhibit 31, is a Panch of discovery panchnama produced at Exhibit 32. According to this witness, on 18.12.1997, at about 2.15 p.m., he and other panch Yakubbhai Razakbhai were called by Himmatnagar Town Police Station in the building of milk society. All of these accused were present at that time. All the six accused stated that they were ready to discover the weapons which were used in the incident. A preliminary panchnama was drawn and each of the accused from the field discovered the weapons and a panchnama was drawn. The witness has been examined in detailed by the defence in the cross-examination. 16. P.W. 7 - Dr. Natvarbhai Prabhudasbhai Patel at Exhibit 40 performed postmortem on deadbody of deceased on 01.01.1998. According to him on 01.01.2008, he had started postmortem of the deadbody of deceased Sardarsinh at about 9.00 a.m. and was completed at 10 a.m. According to this Doctor, the deadbody had following injuries. [1] S.W. 12 cms, obliquely enters - posterior over Ct frontal parietal region of head. [2] S.W. 4 cms transverse over Lt. frontal region of head just near ant. ent. of Injury No. 1. [3] S.W reverted Lt shaped over Rt tempara - parietal region of head. Total length is 17 cms. [4] Abrasion 2 cms x 2cms to scab over lateral surface of Rt shoulder. [5] S.W. 2 cms, transverse just above medial malleolus of Rt leg (surgical). [6] Ulcer 11 cms x 5 cms over sacral region of back. [7] Infrathrvoid, midline wound 1.5 cm x 1 cm (surgical) present of neck. According to Doctor, the deceased had following ante-mortem and internal injuries. [1] Ecchymosis present over under surface of scalp of Rt frontal temporal and parietal region of head. [2] Bone missing of size 7 cms x 6 cms over Lt parietal region of head. [7] Infrathrvoid, midline wound 1.5 cm x 1 cm (surgical) present of neck. According to Doctor, the deceased had following ante-mortem and internal injuries. [1] Ecchymosis present over under surface of scalp of Rt frontal temporal and parietal region of head. [2] Bone missing of size 7 cms x 6 cms over Lt parietal region of head. Bone missing of size 5 cms x 3 cms over Rt parietal region of head. [3] Matter with stitch seen in bone missing area of both parietal regions. Hemorrhagic confusions present in both temparo - parietal lobes of brain. According to Doctor, the cause of death was head injury. He produced on record the postmortem note at Exhibit 41. He stated that the injury was stitched wound and he could not say certainty about the said injury whether caused by dharia or axe. The injury such in nature that could be by sharp cutting and hard and blunt weapon. He has been cross-examined by the defence in which he admitted that if any blow is given by axe of muddamal, the injury cannot be widened than the edge of the weapon i.e. an axe. He admitted that the external injuries and internal injuries were not co-responding. He stated that he had opened the scull. He further stated in the cross-examination of accused Nos. 3 and 7 that if the axe blow is given and the weapon is stretched, then the injury could be wider than edge of the weapon i.e. axe. 17. P.W. 8 - Savabhai Hirabhai examined at Exhibit 42, is a Panch of Panchnama at Exhibit 30 i.e. panchnama of scene of offence. This witness is second panch and did not support the prosecution case and has turned hostile. The prosecution has confronted him with the panchnama at Exhibit 30. 18. P.W. 9 - Rameshchandra Bhalabhai Patel examined at Exhibit 45, was the then Police Inspector in Himmatnagar Town Police Station and deposed that on 17.12.1997, Jugatsinh Jivusinh Solanki had approached the Police Station and had given his complaint which he prepared as per the say of the complainant and he identified the signature of the complainant from FIR at Exhibit 19. After registering the crime, he investigated the offence. He visited the Himmatnagar Civil Hospital and found that the injured was in unconscious position. He wrote a yadi to record Dying Declaration. After registering the crime, he investigated the offence. He visited the Himmatnagar Civil Hospital and found that the injured was in unconscious position. He wrote a yadi to record Dying Declaration. He also gave yadi to Medical Officer for treatment. Thereafter, he went to Village : Navalpur at the scene of offence. The complainant saw the place of offence and, therefore, he arranged the bandobast at the scene of offence. On 18.12.1997, he recorded the statements of the witnesses. Thereafter, he arrested the accused and panchnama of their arrest was prepared. According to this witness, cross-complaint under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was given by the accused and that was also investigated by him and he also recorded the statement. The complainant had shown the scene of offence and, therefore, he prepared panchnama of the scene of offence and seized control earth as well as blood stain earth from the scene of offence. He also drew the discovery panchnama and according to this witness, the muddamal Article Nos. 4, 5, 6, 7 and 9 and 10 were discovered on account of information given by the particular accused. The cloths of the deceased were seized and muddamal as well as cloths of the deceased and blood sample were sent to Forensic Science Laboratory. Accused - Savitaben was arrested on 02.01.1998 because she was taking treatment in Civil Hospital at Himmatnagar and filed charge-sheet on 09.03.1998. He has been cross-examined by the defence and it was alleged that he had carried out tainted investigation and joined hands with Akbarbhai Majidbhai and in earlier case which was filed by the accused, he had not arrested Akbarbhai for which the accused had made representation to the Government authority. This fact he admitted. He also admitted that Atrocity Case No. 12/1998 was cross complaint of the present complaint which was also investigated by him. He also admitted that in the charge-sheet, the case, filed by the accused under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the surname of the complainant was shown to be “Khant”. He also admitted that under the previous case of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, present eye witness Ibrahimbhai was a panch of muddamal recovery. He also admitted that under the previous case of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, present eye witness Ibrahimbhai was a panch of muddamal recovery. He deposed that the houses of Kshatriya, Muslims and Rabari etc were situated at a distance of scene of offence. He denied the fact that the scene of offence was situated right behind the house of Kamubhai Dhragabhai. He also admitted that there were some other houses adjoining to the house of Kamubhai Dhragabhai. He denied the allegation that there was no electric light around the scene of offence even then he himself noted the electric light near the scene of offence. He denied the allegation that he recorded the statements of the witnesses as per his whims. 19. This is all is the evidence of the prosecution. 20. Learned advocate Mr. Y.V. Brahmbhatt vehemently urged that the whole prosecution is set up design to rope in accused on account of animosity between the Muslims and Harihans. There was no reason to kill the deceased as witnesses have admitted that deceased had nothing to do either with the animosity between Harijans and Muslims or with the dead buffalo of one Akbarbhai Khanushia. Even complainant admitted that he had not assisted Akbarbhai Khanushia to remove the deadbody of buffalo and, therefore, there was no cause for the dispute between the accused and deceased. In examination-in-cross, complainant admitted that in fact, he was not cousin brother of the deceased Sardarsinh as he belonged to “Khant” community, while deceased belonged to “Solanki” community and in the complaint, he deliberately gave his surname to be “Solanki”. There was old enmity between Muslims and Harijans and on death of the deceased, Muslims found opportunity and making scapegoat of complainant, roped in seven accused. On probability as well there was no reason for P.W. 2 and P.W. 3 to visit the house of the complainant when earlier day, they had a discussion about removing of dead buffalo and threat administered by accused No. 1. It is admitted fact between the parties that there was a dispute about the way of field between Harijans and Muslims i.e. between accused and P.W. 2 and P.W. 3. Complainant was closely related with the family, Akbarbhai Khanushia was leader of Muslim group. The presence of the witnesses also at the scene of offence, therefore becomes doubtful. It is admitted fact between the parties that there was a dispute about the way of field between Harijans and Muslims i.e. between accused and P.W. 2 and P.W. 3. Complainant was closely related with the family, Akbarbhai Khanushia was leader of Muslim group. The presence of the witnesses also at the scene of offence, therefore becomes doubtful. The scene of offence is not proved by the defence. Therefore, the witnesses are not credible. The time which Doctor, P.W. 4 gives definitely, of reaching of the injured at the hospital at about 8.45 p.m., and the incident occurred as per the history at 8.15 p.m., while in FIR which is given at 23.00 hours, the time of incident is given to be about 9.15 p.m. Natural conduct of the eye-witnesses appears to be abnormal as nobody tries to save the deceased from attack. Investigating Agency is also interested and earlier these accused party had complained in the earlier investigation in a case filed by the accused party. Joint discovery is of no avail to the prosecution case. The story is improbable and, therefore, it is urged that appeal be allowed and accused - appellants be acquitted, alternatively, it is submitted that there is no definite evidence that which blow on the head of the deceased was fatal and it is uncertain in the evidence that who inflicted fatal blow out of the three appellants and hence, it is a case of minimum liability and all the three appellants are entitled to benefit of doubt. At the most each appellant would be liable for lessor offence. 21. As against that, learned APP Ms. Archna Raval for the respondent - State also stated that seven witnesses have supported the prosecution case, out of them three are the eye witnesses. There is no reason that they should not be believed. All the three witnesses are consistent in their say and the panchnama of scene of offence is corroborating the say of eye-witnesses to the extent that not only blood stains, but chilly powder is also found from the scene of offence. The time given by P.W. 4 may be a bona fide error. It is submitted that in appeal, against the acquittal, filed by the State, the learned Judge erred in disbelieving the case of the prosecution under Sections 147, 148 and 149 of the Indian Penal Code. The time given by P.W. 4 may be a bona fide error. It is submitted that in appeal, against the acquittal, filed by the State, the learned Judge erred in disbelieving the case of the prosecution under Sections 147, 148 and 149 of the Indian Penal Code. To the extent that whole crowd was shouting “kill kill” and indicates that the act was, in furtherance common object to kill the deceased. In fact, no cogent reasons are given by the learned trial Judge for acquitting the accused Nos. 3 to 7. First Information is filed immediately and all the accused are named in FIR including the names of the eye witnesses. The discovery of weapons is proved and out of three muddamal articles axes, two have found to be stained by blood group of the deceased and, therefore, it is urged that after dismissing the appeal against the conviction, appeal against the acquittal by the State is required to be allowed and accused Nos. 3 to 7 are required to be held guilty for the murder of Sardarsinh. 22. In reply, learned advocate Mr. Y.V. Brahmbhatt for the appellants vehemently stated that there was no pre-plan at least there is no evidence of pre-plan or meeting of mind so as to infer that all the accused jointly had a common object to kill Sardarsinh and, therefore, the appeal against the acquittal is required to be dismissed as the learned trial Judge has given cogent reasons for the said acquittal. It is a rule of law that orders of the acquittal must not be interfered with lightly. 23. We have considered the rival contentions advanced in both these appeals. We have scanned and appreciated the whole evidence recorded during the trial. We have taken into consideration complete and comprehensive evaluation of all vital feature of the case and the broad and reasonable probabilities arising out of the circumstances emerging from the evidence recorded during the trial, conclusion of the trial Court and the contentions raised by learned advocates in both the appeals. 24. It is the duty of this Court to look into the evidence adduced in the case and to arrive at an independent conclusion as to whether the evidence produced during trial can be relied upon or not, and that whether the case against the appellants could be proved during trial beyond reasonable doubt on the evidence adduced. 24. It is the duty of this Court to look into the evidence adduced in the case and to arrive at an independent conclusion as to whether the evidence produced during trial can be relied upon or not, and that whether the case against the appellants could be proved during trial beyond reasonable doubt on the evidence adduced. The credibility of a witness has to be adjudged in drawing inference from proved and admitted facts emerging from the record. After independent scrutiny of the evidence, objective satisfaction has to be reached affirmatively that the case of the prosecution was substantially true and that the guilt of the accused was proved beyond reasonable doubt during trial. Needless it is to say that the judicial approach in dealing with the case wherein the accused is charged of murder under Section 302 has to be cautious, circumspect and careful. Before convicting the accused by the trial Court and while upholding said conclusion, the Appellate Court, as well, has to consider the matter carefully and examine all the relevant material circumstances of the case. 25. The mere fact that the witnesses are consistent in what they say is not a sure guarantee that they are truthful and credible. A judge, of fact, will have to take into consideration, the totality of the circumstances and come to the conclusion that a witness posing himself as an eye witness really strikes to judicial mind to be an eye witness though he or she may be consistent in his/her evidence. Such witness may not be acceptable for the given reasons. On scrutiny, if it is found that the conduct of the witnesses is such that it makes the case of the prosecution doubtful or incredible and his/or presence at the place of occurrence as an eye witness is suspected, then his/her evidence must be rejected. 26. Further, in order to adjudge the credibility of the witness, the Court must not be confined only to the way in which the witness might have deposed or to the demeanour of the witness. The judicial scrutiny includes consideration of the Court of the surrounding and attending circumstances as well including reasonable probabilities, so that a correct conclusion can be reached about the trustworthiness of a given witness. The judicial scrutiny includes consideration of the Court of the surrounding and attending circumstances as well including reasonable probabilities, so that a correct conclusion can be reached about the trustworthiness of a given witness. While assessing and evaluating the evidence of eye witness, the Court must adhered to, two principles namely (1) whether in the circumstances of the case was it possible for the eye witness to present at the scene of offence and (2) whether there is anything inherently improper or unreliable or improbable of the evidence of a witness. In addition to this, as an attending circumstance, it must be explored that whether the witness had opportunity to witness the crime, what was the ordinary conduct of the witness, what was the nearness of the crime and pre-disposition towards the accused. 27. Though in criminal trials for, the appreciation of the evidence, no hard and fast rule can be laid down as it is after all a question of fact and each case has to be decided on the facts as it stands in prosecution case. There cannot be and can never be any precedent since two cases cannot be identical for all times to come. A Judge being a human being is not a machine but has to be humane and thinking entity. Undoubtedly, he is expected to have live approach rather than to bank open mechanically on some formal proposition without thinking afresh having the correct judicial approach. For doing justice, he has to resolutely take care of their overall senses of duty, the conscience and decide accordingly where the probability ultimately clicks, beaconed with a sense of sound common sense. The evidence led in the trial has to be judged by applying the test of human probability. Real tests for either accepting or rejecting the evidence, are, how consistent the story is with itself, how it stands to test of cross-examination and how it fits in with the rest of the evidence and the circumstances of the case. Appreciation of evidence, is not a question of merely believing or disbelieving the witness. The Judge has to see that the prosecution has fairly made out the case put forward by it. 28. Appreciation of evidence, is not a question of merely believing or disbelieving the witness. The Judge has to see that the prosecution has fairly made out the case put forward by it. 28. It also must not be forgotten that the evidence of witness will have to be assessed by its intrinsic worth, if there are obvious infirmity in the evidence of the witnesses including contradictions, veracity of the evidence is affected. This soundness or otherwise of the evidence has to be determined, not by considering the way to be attached to each single fact in isolation but by assessing cumulative of all facts. When the say of eye-witnesses found inconsistent with or rendered improbable on proof of existence of inconsistent circumstances by the standard of reasonable prudent person, such evidence must be suspected and when neither prosecution nor the defence has come with true facts before the Court, undoubtedly the gainer is the defence and not the prosecution. Thus, appreciation of oral evidence, depending as it does, on such variable and inconsistent factors. As human nature cannot be reduced to set formula, Judging the whole case on its totality there may be circumstances compelling disbelief in certain version of the witnesses of the prosecution case though deposed to by all the available witnesses. It is neither a rule of law nor prudent that if the evidence of the eye-witnesses is consistent with the story narrated in the FIR or corroborates each other then the evidence of such witness has to be accepted on its face value without assessing the probabilities of their evidence or without considering the other factors and features of the case as would be an evidence on the material on the record. Phipson on evidence 14th edition writes “the credibility of a witness depends upon his knowledge of the facts, his intelligence, his disinterestness, his integrity, his veracity. Proportion to these is the degree of credit his testimony deserves from the Court of jury.” 29. Thus, in criminals trial only because more than one witnesses claim to have seen the incident and even if they are consistent in their version, testimony has to be adjudged on objective parameters. 30. Proportion to these is the degree of credit his testimony deserves from the Court of jury.” 29. Thus, in criminals trial only because more than one witnesses claim to have seen the incident and even if they are consistent in their version, testimony has to be adjudged on objective parameters. 30. On appreciating and reappreciating and after grueling scrutiny and scanning each corner of the evidence recorded during the trial, we find numbers of infirmities in the prosecution case and, therefore, we find that while these infirmities are set to the strict test of judicial anvil, suspicion arises in the say of the eye witnesses. Those infirmities are discussed hereinbelow. 31. It is an admitted fact between the parties that Sardarsinh who is deceased in this case, was not at all connected, either with the prosecution witnesses or with the accused. He was altogether third party and had no connection with the rivalry between the accused and the Muslims in the village. He was not at all even connected with the facts deposed by the witnesses as to the incident of removing of deadbody of buffalo of Akbarbhai. Whatever deposed or enmity which is proposed as a cause of incident by the prosecution was between P.W. 2, P.W. 3, their group and the accused and there was no reason, therefore, that only because Sardarsinh who was returning from his field, he would be slaughtered by the accused for the cause of dispute which is developed and advanced by the prosecution. It is not understood that when P.W. 2 and P.W. 3 who had enmity between the accused and who were within the vicinity of 5 feet to 25 feet away at the scene of offence from the accused, the accused would butcher the deceased and leave real enemies untouched and unscathed. In almost all depositions including in deposition of P.W. 1 in cross-examination, it has been admitted by P.W. 1 that what was the enmity subsisting, that was between one Aslambhai, Ibrahimbhai, Akbarbhai, Mubarakbhai and family of accused No. 1. The deceased belonged to “Darbar” community. It is admitted by P.W. 1 that deceased had no enmity at all or connection with the accused. The deceased belonged to “Darbar” community. It is admitted by P.W. 1 that deceased had no enmity at all or connection with the accused. It is also deposed in the evidence that thereafter, as about 10.30, the prosecution side attacked the house of the accused and accused Savitaben had received injuries in said incident and that case was pending before the same trial Court. True it is that motive is not relevant in criminal trial if the incident is proved beyond doubt and credible evidence, but when all the circumstances are considered in totality, the prosecution has failed to establish that why the accused assaulted deceased leaving the real enemies and with victim they had nothing to do. It leads to the conclusion that in fact incident is occurred in the manner differently then deposed by the prosecution witnesses. 32. The second important circumstance is an attempt on the part of P.W. 1 - Jugatsinh Jitusinh who posed himself as cousin brother of the deceased. He deposed in chief that deceased Sardarsinh was his cousin brother. Even in the complaint, he has so stated. When this witness was confronted by the defence that he was a witness of Aslambhai in earlier case, he had given his surname to be “Khant”, while the surname of the deceased was “Solanki”. Not only that in cross-examination in Para-5, he admitted in uncertain terms that the complainant belonged to “Khant” community, while deceased belonged to “Solanki” community. In the version of the witness if we depict a statement in free translation, it is as under: “It is true that deceased was Sardarsinh and he was aged 65 to 70 years at the time of incident. It is true that deceased was “Solanki” and I belonged to “Khant” community but just to pose as cousin brother of the deceased, I gave my surname to be “Solanki”. Therefore, it clearly appears that P.W. 2 and P.W. 3, pertaining to Muslim group and had enmity between them and accused, have made stooge of the complainant and made attempt to rope in the whole family of the accused in death of Sardarsinh. The prosecution has not tried to explain the circumstances in re-examination of the witness. Therefore, it clearly appears that P.W. 2 and P.W. 3, pertaining to Muslim group and had enmity between them and accused, have made stooge of the complainant and made attempt to rope in the whole family of the accused in death of Sardarsinh. The prosecution has not tried to explain the circumstances in re-examination of the witness. The witness might have erred in stating when he is in the box and what appears from the above cross-examination of the witness is that he was neither confused nor committed an error, but the truth is elicited and that is the allegation of the defence that Sardarsinh was found murdered much earlier and in that incident, accused came to be roped in falsely on account of animosity between these groups and the complainant was interested and was near to the Muslim group and that is also very clear from the cross-examination of the complainant wherein he admitted that a complaint was filed, in respect of cutting of hedge of Aslambhai, against the accused and Aslambhai is P.W. 2. The complainant also admitted that in that case, he was panch and witness of Aslambhai. He also admitted that though he was not named in the charge-sheet, but he was examined by the prosecution as an additional witness. Then the question arises as to why the complainant posed himself to be cousin brother of the deceased and how none of the relative of the deceased was examined by the prosecution. One more circumstance is required to be appreciated along with this, is that when the deceased was shifted to Civil Hospital at Himmatnagar, the son of the deceased was present and history was given by the son of deceased to attending Doctor. That is very clear from the evidence of P.W. 4 and these circumstances lead to the screen of doubt behind which the prosecution witnesses have concealed something and no true version is coming out before the Court. 33. Very important factor is time factor in the incident which is completely ignored by the trial Court. So far as the time factor is concerned, none of the three important witnesses i.e. P.W. 1, P.W. 2 and P.W. 3 could be said to be so rustic as to make mistake for an hour about the incident. 33. Very important factor is time factor in the incident which is completely ignored by the trial Court. So far as the time factor is concerned, none of the three important witnesses i.e. P.W. 1, P.W. 2 and P.W. 3 could be said to be so rustic as to make mistake for an hour about the incident. Otherwise also, so far as the time factor is concerned, an independent and intelligent witness is involved and one close relative of the deceased i.e. his son is involved as to when the incident occurred. It is established without any doubt by First Information Report at Exhibit 19 that the incident occurred at 8.45 p.m. and then the deceased Sardarsinh was shifted, according to the witness, to Civil Hospital at Himmatnagar where according to the complainant, he was advised by one female to go to the Police Station to file a complaint and, therefore, the complainant approached Himmatnagar Town Police Station and filed a complaint at 23.00 hours. Now, if we peruse and appreciate the evidence of P.W. 4 - Dr. Karunaben, she emphatically stated that on 17.12.1997, Sardarsinh was brought to her at 8.45 p.m. and yadi to that effect was given to her by the Police thereafter. It must be remembered that Dr. Karunaben is an independent witness having no interest at all to either side. It must also be noted that while Dr. Karunaben deposes that patient was brought to her at 8.45 p.m., she is supported by documentary evidence in the form of certificate which must have been prepared from the case papers and case papers are prepared immediately at the time of admitting patients by the hospitals. The documentary evidence i.e. Exhibit 27 a certificate which is normally prepared from the case paper, also indicates that Sardarsinh was shifted to Civil Hospital at Himmatnagar at 8.45 p.m. What is important to note further, according to this Doctor, is history of assault by opposite party, which was given by the son of the deceased, who was accompanying the patient and according to this history, the incident had occurred at about 8.15 a.m. at Village : Navalpur and the injuries were caused by the opposite party. In examination-in-cross, in Para-9, the witness P.W. 4 Dr. In examination-in-cross, in Para-9, the witness P.W. 4 Dr. Karunaben again confirmed that the patient was in her charge from 8.45 p.m. to 12.00 a.m. and, thereafter referred to Civil Hospital at Ahmedabad by her. The prosecution has not explained the circumstances even by re-examination of this witness nor having examined son of the deceased, who was present along with the patient. These circumstances cannot be simply brushed aside merely by saying that there was an error on the part of Doctor who noted the time of reaching patient Sardarsinh at the hospital and when the history was given by the son wherein it is, categorically, noted that the incident occurred at 8.15 p.m. on that day. While in this respect, when the evidence of P.W. 1, P.W. 2 and P.W. 3 is assessed, it is found that P.W. 2 - Aslambhai, P.W. 3 - Ibrahimbhai both visited the house of the complainant, that too for the peculiar purpose, and in respect of the fact that earlier a scuffle ensued between the accused No. 1 and the complainant. In examination-in-chief, in Para-9, the complainant stated, in categoric terms, that on 17.12.1997, when he was at his house at about 8.30 p.m., Aslambhai and Ibrahimbhai (P.W. 2 and P.W. 3) both had visited his house in respect of the incident which had occurred earlier in which allegedly accused No. 1 threatened the complainant that why the complainant had assisted Akbarbhai to remove the deadbody of buffalo. According to the complainant, both these persons sat at his house and took tea and, thereafter, both these witnesses started to go to their houses and since complainant himself had to go to village, he also accompanied them. Likewise, when the evidence of P.W. 2 - Aslambhai is assessed, in Para-3 of cross-examination, he admitted that all the three P.W. 1, P.W. 2 and P.W. 3 started to go towards the village at about 9.05 p.m. While P.W. 3 - Ibrahimbhai also categorically stated that when all the three started to go to village from the house of the complainant, it was night at 9.15 p.m. All these witnesses are not rustic witnesses as to commit error in timing of the incident. One may understand if the time is set here and there but the witnesses are exact in their saying, as against that we do not find that there was any reason or error on the part of P.W. 4 - Dr. Karunaben to say that the patient was brought to her at about 8.45 p.m. with history that the incident had taken place before half an hour i.e. about 8.15 p.m. In totality of the circumstances, if this fact is put to scrutiny, it clearly appears that all the three witnesses i.e. P.W. 1, P.W. 2 and P.W. 3 have attempted to design the incident which has many loopholes and devoid of the whole truth. It can be said that the prosecution has failed to explain this infirmity in the prosecution case which creates doubt in the credibility of the witnesses. 34. We may look at the prosecution case which is found in the version of witnesses about the scene of offence. In a case wherein witnesses depose before the Court after considerable time and memory of retention and reproduction is a factor to be considered while appreciating the evidence, but when consistently witnesses fumble upon the important aspect as to the scene of offence, and that too, for considerable extent, those witnesses must not be given trustworthiness of true version. In a scuffle in an open place, place of offence is deposed of 50 feet to 100 feet here or there, may be considered to be human error. If at the same time, when totality of facts scrutinized with the version of eye-witnesses as to place of offence and is found varying, the conclusion would be a reasonable doubt about the presence of eye-witnesses at the place of offence. To appreciate the version of eye-witnesses necessary it is to see the panchnama of scene of offence which is placed at Exhibit 30. True that panchas examined of this panchnama i.e. P.W. 5 - Ismailbhai Dhranga and P.W. 8 - Savabhai Hirabhai Raval have not supported this panchnama, but the complainant admits that he has shown the scene of offence to the police and this panchnama is further proved by the Investigating Officer P.W. 9 - Rameshbhai Bhalabhai Patel. First in point of time is complaint and then the panchnama is recorded on the next day. First in point of time is complaint and then the panchnama is recorded on the next day. Therefore, it is necessary to see the scene of offence as has been narrated by the complainant in the complaint. In complaint Exhibit 19 in categoric terms, the complainant stated that he along with two other eye-witnesses were coming from their house and going towards Harijan Vas on the way leading to Harijan Vas. On that road a crowd came shouting “kill kill” and at that juncture, deceased was coming from his field and on that road, the deceased was accosted by the accused No. 1 and his wife and the incident ensued. Now, in the panchnama at Exhibit 30 which is drawn on 18.12.1997 from 8.00 a.m. to 9.00 a.m. i.e. on the next morning of the incident, the complainant had shown the scene of offence to be a road i.e. narrow lane known as “Nalia” connecting Village : Navalpur and Village : Polajpur. This narrow lane was of 14 feet broad and had marks of tyres of tractor and cart wheels. It was also found in circumference of half feet blood, was on the earth and mixed with the earth and had dried. 100 Gram such earth was taken and seized. This road from which this blood was found was in Eastern - Western direction and on Western side of this road, Village : Navalpur was situated, while on Eastern side, a road was leading to Village : Polajpur. What is from the panchnama is that there was a way on Southern side of this road leading from this road to Harijan Vas. On Eastern side of this road leading to Harijan Vas, 40 feet away a house of one Valabhai Revabhai was situated and in line, a house of Dahyabhai Revabhai was also situated. On Northern side of Nalia, East - West direction, from where blood was found, there was a hedge of cactus and there was an electric poll in which it was written No. 5/3 and one bulb was hanging with wires on the said electric poll. On Northern side of Nalia, East - West direction, from where blood was found, there was a hedge of cactus and there was an electric poll in which it was written No. 5/3 and one bulb was hanging with wires on the said electric poll. From this road and the road which was leading to Harijan Vas in Southern direction from this Nelia, at a distance of 65 feet from the road, one other electric poll was there and number was written in that, was 5/3-1 and there was one electric tube light fixed on that poll from which the scene of offence could be seen, which is in Eastern and Western direction. It is mentioned in the panchnama that after Harijan Vas, on Southern portion of Nalia, Thakor Vas was situated on the Northern side of Eastern - Western direction road of scene of offence, there was only one electric poll and, thereafter there were fields of villagers and just adjoining field of one Aslambhai was situated. Thus, according to the scene of panchnama and prosecution case, the scene of offence was situated on the narrow lane road connecting Village : Navalpur and Village : Polajpur. It appears that Village : Navalpur, where the incident took place, has been developed on the Western side and Southern side on this road. This is established position in the prosecution case. Now if we scrutinize the version of the witnesses and from the complaint at Exhibit 19, what emerges is that all the three witnesses noticed the incident occurring on the road which was leading to Harijan Vas. A situation can be envisaged that according to the panchnama, Thakor Vas is situated on Southern side of Harijan Vas, there is narrow road from Thakor Vas to come to Harijan Vas and that road then proceeds further towards the Northern side where ultimately this Eastern - Western road of Village : Navalpur and Village : Polajpur is situated, which is according to the prosecution case, is a scene of offence. In complaint, it is declared that the incident occurred on the road, which was near the Harijan Vas and was leading to Harijan Vas which was noticed by three eye witnesses, while they were coming out from the Thakor Vas. In complaint, it is declared that the incident occurred on the road, which was near the Harijan Vas and was leading to Harijan Vas which was noticed by three eye witnesses, while they were coming out from the Thakor Vas. If the evidence is still probed and appreciated, it emerges that the road on which the complainant describes the incident having occurred is on road on southern portion of the road which is mentioned in the panchnama, is of Eastern and Western direction connecting Village : Navalpur and Village : Polajpur. Therefore, the scene of offence, according to the panchnama, is situated on the road which is on outskirts of the village and a road going towards the Village : Polajpur from Village : Navalpur. While this incident, according to the witnesses, had occurred near Harijan Vas, a road leading to Harijan Vas and, thereafter, to Thakor Vas and according to the panchnama at Exhibit 30, this road is situated in the southern direction of the scene of offence as described in panchnama at Exhibit 30. On perusing the evidence in Para-3, the complainant stated that while they were passing near the gate of Harijan Vas, they heard shouts and found that his cousin brother deceased Sardarsinh was coming from his field towards his house and in the light of tube light, they noticed the incident meaning thereby that the incident occurred, according to the witness, near the gate of Harijan Vas on the road where the road which was leading to Harijan Vas and not on the Eastern - Western direction road leading to Village : Polajpur situated on the northern side of Harijan Vas and one road is leading from Harijan Vas on northern direction and electric poll which is very near to the scene of offence was having a hanging bulb. While 65 feet away from this place, according to panchnama, there was an electric light poll which was situated towards the Harijan Vas, but from there, the blood was not found and it was found near the road where the electric poll with hanging bulb was situated. While 65 feet away from this place, according to panchnama, there was an electric light poll which was situated towards the Harijan Vas, but from there, the blood was not found and it was found near the road where the electric poll with hanging bulb was situated. In Para-6, it is also admitted by the complainant, in his deposition that the scene of offence which is situated on Nalia Eastern - Western direction and a road was going towards the north from the houses of Harijans till the narrow road of villages Navalpur and Polajpur where place of offence is shown panchnama. Likewise, P.W. 2 - Aslambhai Majidbhai Khanushia also stated that from Thakor Vas, all the three came on the road near Harijan Vas where they noticed the incident. He is also not clear in his cross-examination which is in Para-4 and his confusing statement is that the place of offence was near the public road. When in this respect P.W. 3 - Ibrahimbhai Rashidbhai Khanusia also stated that when they came near Harijan Vas, they noticed the deceased coming from his field and in the light of tube light, they noticed crowd of 20 - 25 persons, when accused were there and the incident ensued. He is again not clear in his deposition in Para-3 about this and he is confusing the place of offence. Thus all the three eye-witnesses stated that the incident took place in near somewhere Harijan Vas on a road. Now panchnama at Exhibit 30 denotes that the scene of offence was eastern –western directions road and from eastern - western direction road, a narrow road was going towards the south towards Harijan Vas and, thereafter Thakor Vas was situated in the southern direction of the Harijan Vas. Therefore, it is clear that the eye-witnesses are not consistent about the scene of offence which creates doubt on their veracity. It is easy to state that witnesses have seen the incident and that all the three accused one by one inflicted the axe blows. But if the veracity of such witnesses are put to judicial scrutiny, the intrinsic worth of their say could be assessed and so assessing with the circumstances of confusion about the scene of offence, it appears that the presence of the eye-witnesses at the relevant time when the incident occurred, is doubtful. 35. But if the veracity of such witnesses are put to judicial scrutiny, the intrinsic worth of their say could be assessed and so assessing with the circumstances of confusion about the scene of offence, it appears that the presence of the eye-witnesses at the relevant time when the incident occurred, is doubtful. 35. The evidence of discovery weapons is not at all useful to the prosecution. When we scrutinize this evidence, we find that six accused out of seven accused made disclosure before the police officers jointly, in presence of panchas. This panchnama was drawn on 18.12.1997 at 14.15 hours and panch Mahammadbhai Hanifbhai Dhaga examined as P.W. 6 at Exhibit 31 also supports that all the accused jointly made disclosure before the police officers about the weapons and weapons were discovered in pursuance of this information by the accused jointly from open place. Learned advocate Mr. Y.V. Brahmbhatt for the appellants has relied upon the decision of the Apex Court in the matter of Mohd. Abdul Hafeez vs. State of Andra Pradesh, reported in 1983 Cri.L.J. 689 = AIR 1983 SC 367 , wherein the Apex Court observed that joint discovery on joint statements of the accused would not incriminate the accused. We have also noted that the way regarding joint statement of the accused which leads to discover, is most unsatisfactory because if the evidence otherwise confessional in character is admissible under Section 27 of the Evidence Act, it is obligatory upon Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. In this panchnama at Exhibit 32, it is recorded that all the six accused in the presence of panchas voluntarily stated that they were prepared to discover the weapons, they had used by which they had beaten the opposite party on 17.12.1997 and upon this information jointly received from the accused, Investigating Officer and the panchas took the accused to search the discovery. Therefore, this is most unsatisfactory mode of proving important piece of evidence permissible under Section 27 of the Evidence Act. In addition to this, it may be noted that all the discovery by each accused is from an open place. Therefore, this is most unsatisfactory mode of proving important piece of evidence permissible under Section 27 of the Evidence Act. In addition to this, it may be noted that all the discovery by each accused is from an open place. Therefore, the evidence of discovery is not at all satisfactory and, therefore, the evidence of Forensic Science Laboratory about the blood group of the deceased on two muddamal axes, is also of no use to the prosecution. 36. It is also to be noted that the role of Investigating Agency is also not impartial and fair. It has been admitted by the witnesses and Investigating Officer Rameshbhai Bhalabhai Patel, P.W. 9 that one Akbarbhai was leader of Muslim group, against the accused, was also an accused in earlier complaint filed by the accused. In the said case, though the Akbarbhai was shown as an accused but was not arrested till this Investigating Officer was on duty and he was Investigating Officer in the said earlier crime. He has also admitted that on account of not arresting Akbarbhai, the present accused in the said crime, had made representation to the District Magistrate and had gone on hunger strike and, therefore, investigation is also not free from suspicion, or at least does not appear to be fair. 37. Still if the case is further probed, it is deposed by the complainant that the earlier day of the incident in which accused No. 1 Dahyabhai and accused No. 7 Savitaben threatened the complainant was narrated by him to all village persons including P.W. 2 and P.W. 3. Even P.W. 2 - Aslambhai and P.W. 3 - Ibrahimbhai both admitted this fact that they knew that on 16.12.1997 both accused had accosted complainant about removing the deadbody of buffalo belonged to Akbarbhai. Therefore, the question arises that when P.W. 2 - Aslambhai and P.W. 3 - Irahimbhai both knew about the incident of threatening the accused Nos. 1 and 7 to complainant on 16.12.1997, what was the need for them to go to the residence of the complainant, at very juncture at 8.30 p.m. With this, we peruse parrot like version of the witnesses as to inflicting of injuries by the accused Nos. 1 to 3 one by one on the head of the deceased, it appears that the creditworthiness and trustworthiness of the eye-witnesses is doubtful. 38. 1 to 3 one by one on the head of the deceased, it appears that the creditworthiness and trustworthiness of the eye-witnesses is doubtful. 38. Thus, all the circumstances as mentioned above and the infirmities in the prosecution case is considered in totality and in connection with each other, what emerges is a design by the complainant and other two prosecution witnesses P.W. 2 and P.W. 3 who have involved all the seven accused in the incident. The prosecution evidence is doubtful as to whether the incident had occurred where the witnesses have stated to have occurred and that the presence of the witnesses also becomes doubtful at the time of the incident which is obvious from the evidence of P.W. 4 - Dr. Karunaben Rameshbhai Patel. Balance is, therefore, definitely tilted towards the accused and, they are entitled to benefit of doubt and this aspect could not be considered by the trial Court. We find that three eye-witnesses examined in the case were highly interested and that is an admitted fact. But merely because of that, their evidence could not be rejected and we have, therefore, scrutinized the evidence from all aspect. Occurrence of incident had not taken at the place and in the manner alleged by the witnesses nor at the time of the occurrence and place, the witnesses deposed. The evidence of the eye-witnesses besides they being related, has been scanned by us in the background of the serious infirmities narrated as above, we have appreciated to separate grain from the chaff and have found that the various infirmities and defects in the prosecution case, as referred to above, had broken the grain of the story and mixed it with chaff to such an extent that it was difficult, almost impossible, to separate them and find the guilt of the appellants to have been proved beyond reasonable doubt. For the reasons recorded above, we entertain a grave suspicion against the present appellants that they may have committed the crime. The prosecution has left the gulf unabridged leaving many things in the womb of mystery and thus, it is not possible to salvage the prosecution case lying in the gulf unbridged. For the reasons recorded above, we entertain a grave suspicion against the present appellants that they may have committed the crime. The prosecution has left the gulf unabridged leaving many things in the womb of mystery and thus, it is not possible to salvage the prosecution case lying in the gulf unbridged. Undoubtedly, it is great regret and concern that a citizen of a village aged about 60 to 70 years was slain to death by the diabolical murder but for proving the guilt of each of the appellants, the version of the prosecution case has to be checked dispassionately and carefully. While doing so, we find that proving the guilt of the accused beyond reasonable doubt is much far from what emerged and deduced through appreciation of the evidence, as reasoned above. 39. In this view of the matter, we have no other alternative, except to come to the conclusion that the prosecution has failed to prove the charge against each of the appellant under Section 302 of the Indian Penal Code beyond reasonable doubt and the judgment and order of conviction of the trial Court impugned in Criminal Appeal No. 917/2000 convicting each of the accused for the charge under Section 302 of the Indian Penal Code and sentencing each of the accused, is bad in law and is set aside. Each of the three appellants herein - accused No. 1 - Dahyabhai Revabhai Chamar, accused No. 2 - Amrutbhai Revabhai Chamar and accused No. 3 - Natvarbhai Revabhai Chamar is acquitted of the charge levelled against them under Section 302 of the Indian Penal Code. 40. Now in above view of the matter, Criminal Appeal No. 1007/2000 filed by the State against the judgment and order of acquittal against original accused No. 4 to accused No. 7 who are respondents in this appeal is not required to be dealt with as the whole prosecution case is found doubtful and conviction of three accused out of seven is also required to be set aside. The question of interference in the appeal against the judgment and order of acquittal against original accused No. 4 - Alakhabhai Khatubhai Chamar, accused No. 5 - Motibhai Revabhai Chamar, accused No. 6 - Kaliben w/o. of Valabhai Revabhai Chamar and accused No. 7 - Savitaben w/o. of Dahyabhai Revabhai Chamar would not arise at all and, therefore, the Criminal Appeal No. 1007/2000 filed by the State against the judgment and order of acquittal of the trial Court is required to be dismissed. 41. For the reasons recorded above, Criminal Appeal No. 917/2000 is allowed. The judgment and order of the trial Court convicting each of the appellants i.e. appellant No. 1 - Dahyabhai Revabhai Chamar, appellant No. 2 - Amrutbhai Revabhai Chamar and appellant No. 3 - Natvarbhai Revabhai Chamar for the offence punishable under Section 302 of the Indian Penal Code and sentencing each of the appellants is set aside. Each of the appellants i.e. appellant No. 1 - Dahyabhai Revabhai Chamar, appellant No. 2 - Amrutbhai Revabhai Chamar and appellant No. 3 - Natvarbhai Revabhai Chamar are acquitted of the charge under Section 302 of the Indian Penal Code and it is directed that if any of the three appellants named as above, are not required to be detained for any other purpose, each of the appellants be set at liberty forthwith. The impugned judgment and order passed by the trial Court in respect of muddamal is not interfered with. Direct service is permitted if so requested by the appellants to Registry and if so not requested then the Registry is directed to issue a writ immediately. Criminal Appeal No. 1007/2000 filed by the State is dismissed.