JUDGMENT (HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the Judgement and Order passed by the learned Special Judge (Atrocity) & Additional Sessions Judge, Veraval in Special Atrocity Sessions Case No.16 of 2000, whereby the appellant accused has been convicted for the offence under Section 302 of IPC read with Section 135 of the Bombay Police Act and the sentence has been imposed upon the appellant-accused for the life imprisonment with the fine of Rs.25,000/- and also for 6 months imprisonment with the fine of Rs.500/- for the respective offences. 2. As per the prosecution case, on 28.03.2000, at about 14.30 hours, when the deceased Nathabhai Naranbhai had gone to load sand in the agricultural field of Kanabhai Barad, at that time when the deceased was filling up the sand, the accused-appellant had killed the deceased by giving axe blows. The brother of deceased Gopalbhai Naranbhai was informed by one Punja Vasa and the said brother of the deceased was also informed by his wife Ganga about the aforesaid incident. Therefore, the brother of the deceased Gopalbhai Naranbhai, P.W.1, lodged the complaint which was registered vide C.R.No.19/00 of Sutrapada Police Station for the offence under Section 305 of IPC read with Section 135 of Bombay Police Act (BP Act). It was stated in the complaint that there was enmity between deceased and accused on account of wiring of the light. The police investigated the complaint and ultimately, the charge-sheet was filed against the appellant-accused for the offences under Section 302 of the IPC for causing death of Dalit (Harijan) Nathabhai Naranbhai Rathod and also for the offences under Section 135 of the BP Act since the accused was possessing axe which was a prohibited weapon as per the Notification of the District Magistrate under the BP Act. The charge-sheet was also filed for the offence under Section 3(2) (5) of the Schedule Caste & Schedule Tribes (Prevention of Atrocities)Act, 1989 ( the Act for short). The prosecution in support of the charge, had examined the following witnesses: P.W. No. Name Exh. The charge-sheet was also filed for the offence under Section 3(2) (5) of the Schedule Caste & Schedule Tribes (Prevention of Atrocities)Act, 1989 ( the Act for short). The prosecution in support of the charge, had examined the following witnesses: P.W. No. Name Exh. COMPLAINANT 1 Gopalbhai Naranbhai Rathod 20 EYEWITNESSES 2 Bhagwanbhai Pithabhai Vaja 23 3 Savitaben Govindbhai 24 4 Parbatbhai Dahyabhai Vaja 25 5 Arjanbhai Ranabhai Vaja 26 16 Bhanabhai Alabhai Makwana 47 17 Hamirbhai Meramanbhai Zala 48 PANCH WITNESSES 6 Muljibhai Rambhai Zala 28 7 Nathabhai Bachubhai Rathod 29 8 Farakbhai Yusufbhai Makrani 30 9 Kanaksinh Vrajsinh Zala 31 10 Ranjitbhai Danabhai Mori 32 11 Harunbhai Gulamhusseinbhai Sheikh 33 15 Ayubkhan Bismillakhan Pathan 43 WITNESSES RELATED TO DECEASED 12 Janubhai Nathabhai (Wife of deceased) 37 13 Naranbhai Jesabhai Rathod (father of the deceased) 38 DOCTOR WITNESS 14 Dr.Deepakbhai Jugankishor Sena 39 OTHER WITNESS 18 Randhir Lakhman Zala (Owner of the tractor) 49 POLICE WITNESSES 19 Laxmansinh Gambhirsinh Chudasma (PSO who took the complaint) 50 20 Khengarbhai Danabhai Parmar (Investigating Officer) 57 21 ManojbhaiManglaji Balat (Investigating Officer) 60 22 Khimjibhai Hiyabhai Bharai (Investigating Officer) 62 23 Hitendrakumar Ramjibhai Chaudhari (Investigating Oficer) 75 The prosecution in support of the charge had also produced the following documents. Sr. No. Particulars Exh. 1 True copy of the complaint of Gopalbhai Naranbhai 21 2 Receipt for the dead body of the deceased. 22 3 Inquest Panchnama 34 4. Recovery Panchnama of bottle used for taking blood from the dead body of the deceased. 35 5 PM report of the dead body of the deceased. 41 6 Sealed sample of blood taken by the Doctor. 42 7 Order of inquiry after registration of complaint. 51 8 Special Report. 52 9 O/C of the message sent by PSO, Sutrapada to Police Officer. 53 10 O/C of the message sent by PSO, Sutrapada to FSL, Junagadh. 54 11 O/C of the yadi written by the ASI, Sutrapada to Medical Officer for performing Post Mortem. 58 12 True copy of the yadi written by the ASI, Sutrapada to Medical Officer for performing Post Mortem. 61 13 OC of form for conducting Post Mortem. 59 14 Panchnama of the place of incident. 63 15 Singed copy of the Panchas and P.S.O. 64,66,67 16 Recovery panchnama of the clothes taken from the body of the deceased at the time of conducting Post mortem. 61 13 OC of form for conducting Post Mortem. 59 14 Panchnama of the place of incident. 63 15 Singed copy of the Panchas and P.S.O. 64,66,67 16 Recovery panchnama of the clothes taken from the body of the deceased at the time of conducting Post mortem. 65 17 Resolution under Section 165 of the CRPC. 68 18 Panchmana of the search carried at the house of the accused. 69 19 Insertion of Section 3(2)(5) of the Atrocities Act. 70,81 20 OC of the message sent by PSI, Sutrapada to DSP, Junagadh. 71,72 21 True copy of the message sent by DSP, Junagadh to PSI, Sutrapada 73, 74 22 Panchnama of physical condition, arrest, and seizure of cloths. 76 23 Signed copy of panchas and Sp.P.O. 77,79,80 24 Panchnama of the axe given by the accused under Section 27 of the IPC. 78 25 Letter of the visit of the place of offence made by the mobile laboratory of the FSL. 82 26 OC of the application made by investigating officer asking for remand. 83 27 OC of the letter of sending the accused in judicial custody. 84, 87 28 Remand Warrant. 85 29 OC of the message sent by Spl.P.O. to D.P.O. 86 30 Letter written by Spl.P.O. to FSL 88 31 Forwarding note of Muddamal 89 32 Certificate of forwarding note of Mudammal. 90 33 Acknowledgment of the receipt of the duly sealed muddamal by the FSL 91 34 OC of the letter written by Sp.P.O to P.S.I. Sutrapada asking for Caste Certificate of the deceased. 92 35 Caste Certificate of the deceased Nathabhai Naranbhai. 93 36 Caste Certificate of the complainant Gopalbhai Naranbhai. 94 37 Forwarding letter of FSL 95 38 Report of the Chemical Analyzer of FSL 96 39 OC of the letter of Spl. P.O. to D.S.P. 97 40 Notification under Section 37(1) of the Bombay Police Act 98 41 Forwarding letter of FSL 99 42 Serological Report 100 43 Duty list of the recipient of the wireless message of Exh.73 105 One person viz. Karabhai Sakrabhai Makadia is examined as Court witness and he had produced the following documents: Sr. No. Particulars Exh. 1 Extract of the Logbook of the duty-in-charge of DSP Control Room 110 2 Extract of the fax inward register of D.S.P, Junagadh 111 3 Xerox of the fax made by Naranbhai Jesabhai Rathod on 26.03.2000. Karabhai Sakrabhai Makadia is examined as Court witness and he had produced the following documents: Sr. No. Particulars Exh. 1 Extract of the Logbook of the duty-in-charge of DSP Control Room 110 2 Extract of the fax inward register of D.S.P, Junagadh 111 3 Xerox of the fax made by Naranbhai Jesabhai Rathod on 26.03.2000. 112 4 Xerox of wireless message of D.S.P.,Junagadh to P.S.I., Sutrapada 113 5 Extract of Wireless Message register of office of D.S.P., Junagadh 114 6 OC of the letter dated 10.04.2000 written by DSP, Junagadh to PSI, Sutrapada 115 7 OC of the letter dated 15.04.2000 written by DSP, Junagadh to PSI, Sutrapada 116 3. The learned Special Judge (Atrocity) & Additional Sessions Judge, after recording of the evidence, had also recorded the statement of the accused under Section 313 of the CRPC, wherein the accused had denied all the evidence which came on the record against him and in the further statement, the accused had stated that he had been wrongly involved in the case due to earlier dispute and though it was a case of accident, a false case is filed against him. 4. The learned Special Judge (Atrocity) & Additional Sessions Judge, after hearing both the sides, found that the prosecution has been able to prove the case for the offence under Section 302 of the IPC as well as under Section 135 of the BP Act against the accused and therefore, has convicted the accused for both the offences. The learned Special Judge also found that the prosecution has failed to prove the case for the offence under Section 3(2) (5) of the Act and therefore, the accused is acquitted for the said offence. 3. The learned Special Judge (Atrocity) & Additional Sessions Judge has heard the accused before imposition of the punishment and after hearing, the learned Special Judge (Atrocity) & Additional Sessions Judge has imposed sentence of life imprisonment with the fine of Rs.25,000/- upon the accused and has also imposed sentence of 6 months imprisonment with the fine of Rs.500/- for the offence under the B.P.Act. Out of the amount of fine, the amount of Rs.20,000/- is ordered to be paid to the heirs of the deceased and amount of Rs.5,500/- is ordered to be credited with the State. It is under these circumstances, the present appeal before this Court. 4. We have heard Mr. Out of the amount of fine, the amount of Rs.20,000/- is ordered to be paid to the heirs of the deceased and amount of Rs.5,500/- is ordered to be credited with the State. It is under these circumstances, the present appeal before this Court. 4. We have heard Mr. Buddhbhatti, learned counsel appearing for the appellant-accused and Mr.Raval, learned APP for the State. 5. It appears that the P.W.1 who is the complainant, has admitted of filing a complaint with the Police and the complaint is also produced on record at Exh.7. The said complainant as is not the eyewitness, his deposition may have relevance for corroboration to the incident. The said witness has narrated the incident as per the information received by him for causing death of the deceased Nathabhai, by the accused. The said witness has identified the signature on the complaint. He has also identified the accused who was present in the Court. He has also identified the mudammal and the cloths of the deceased. In the cross-examination of the said witness, nothing has been revealed to contradict the statement made in the complaint or the identification of the complaint, the narration of the incident, the identification of the accused or the identification of the mudammal and the cloths of the deceased. 6. Bhagwanbhai Pithabhai Vaja, P.W.2, is an eyewitness to the incident. The said witness has deposed that he had gone for labour work on the date of the incident. As per the said witness, after taking lunch, they started doing work at about 2.30 Hours of noon and at that time, the deceased had come on the tractor. The said witness heard the shout and he saw that the deceased Nathabhai by getting down from the tractor had started running and thereafter, he fell down and the blows of axe were being given upon him. The said witness has stated that accused Haribhai Siddhibhai had given axe blows. The said accused, due to fear thereafter, ran away. The said witness has identified the accused Haribhai Siddhibhai who was present in the Court. In the cross-examination of the said witness, the defence has not be able to prove any contradictory evidence except that he has stated at the initial stage that he had seen the incident at the distance of 30-40 ft. and subsequently, he stated from 50-60 ft. In the cross-examination of the said witness, the defence has not be able to prove any contradictory evidence except that he has stated at the initial stage that he had seen the incident at the distance of 30-40 ft. and subsequently, he stated from 50-60 ft. The observance of the incident by such witness in the capacity as eyewitness has not been contradicted even in the cross-examination. 7. Parbatbhai Dahyabhai Vaja, P.W.4, is the another eyewitness of the incident. As stated by the said witness, the appellant-accused had started running behind Nathabhai on the date of the incident and deceased Nathabhai wanted to run away, but the accused Haribhai had given blows on the back of the deceased and had also given 3-4 blows on the neck of the deceased with the axe. The said witness had stated that as the blows were given to Nathabhai he was afraid of and he ran away thereafter. The said witness has identified the axe which was in the hand of the accused at the time of incident. He has also identified the cloths of the deceased. In the cross-examination of the said witness, no contradiction has come out to disbelieve the statement made in the capacity as eyewitness to the incident. 8. Arjanbhai Ranabhai Vaja is the third eyewitness to the incident who was examined as P.W.5 and his deposition is at Exh.26. As per the said witness, when deceased Nathabhai had come with the tractor, the accused with the axe had come running. Therefore, the deceased Nathabhai left the tractor and started running and at that time, the accused Haribhai Sidibhai ran behind him. The accused gave blows with the axe to Nathabhai and Nathabhai had fallen down and thereafter, he expired. Since the said witness was afraid of, he ran away. As per the said witness, the blows were given on the neck of the deceased Nathabhai. The said witness has identified the axe which was in the hand of accused Haribhai. He has also identified the cloths of deceased Nathabhai and he has also identified the accused who was present in Court. In the cross-examination of the said witness, the defence has not been able to reveal any contradiction to his narration of the incident and his capacity as eyewitness. He has also identified the cloths of deceased Nathabhai and he has also identified the accused who was present in Court. In the cross-examination of the said witness, the defence has not been able to reveal any contradiction to his narration of the incident and his capacity as eyewitness. The pertinent aspect is that in the cross-examination, he has stated that he has seen the incident at a distance of about 10-15 ft. 9. The other witness Januben Nathabhai Harijan, wife of the accused, though hearsay, has corroborated the incident in her deposition. The panchas and other witnesses who were hearsay witnesses have turned hostile, but the discovery panchnama, the discovery of cloths, inquest panchnama, and others have been proved in the deposition of the I.O. Hitendrakumar Ramjibhai Chaudhari, P.W.23, and such documents have been accepted. 10. Dr.Deepakbhai Jugankishor Sena, P.W.14, is examined by the prosecution whose deposition is at Exh.39. The said Doctor has performed the postmortem and he has admitted the performance of the postmortem and the Postmortem Report submitted by him. As per the deposition of the said witness and the Postmortem Report, the injury on the body of the deceased were as under: 1. CLW 5 inch over Rt upper part of neck. 4 inch width and 2 inch depth. 2. Treechee & esophagus cut carotid vessels cut on Rt side. Semi digested food matter and blood oozing from the site. 3. CLW 1 ½ X 1 on Rt Supra devicular region of neck. - Abrasion (linear) over right rib case 4. CLW 3 X 1/2 X 1/2 medial to Rt scapula. 5. CLW 1 1/2 X 1 X 0.5 lat to Rt scapula. The cause of death as per the opinion of the Doctor is due to shock due to injury to vessels and vital organ of the neck . The said witness has confirmed the cause of death in his deposition and has opined that the injury mentioned in the PM report at column No.17 could be caused with sharp cutting weapon except the injury or abrasion. He also stated that the injury Nos.1 & 2 were sufficient to cause death. He was shown the iron axe (Article 6) and he has opined that such abrasion could be caused with the said axe. In the cross-examination of the Doctor, no contradiction has come out on record to dislodge the case of the prosecution. 3. He also stated that the injury Nos.1 & 2 were sufficient to cause death. He was shown the iron axe (Article 6) and he has opined that such abrasion could be caused with the said axe. In the cross-examination of the Doctor, no contradiction has come out on record to dislodge the case of the prosecution. 3. The aforesaid shows that the injury on the body of the deceased as stated in the PM Report mainly on the neck and the back as stated by the above eyewitness are corroborated by the medical evidence. 4. The FSL Report shows that the deceased was having blood group of O and the samples of the blood taken from the clay, the cloths of the deceased, the cloths of the accused and over the axe were found of O group and therefore, the FSL report fully supports the case of the prosecution for injury being caused to the deceased with the axe. 5. The police witness Khimjibhai Hiyabhai Bharai, who partly investigated the complaint has been examined at P.W.22 Exh.62 and another I.O. who subsequently took over the investigation is also examined as P.W.23 viz. Hitendrakumar Ramjibhai Chaudhari. It may be stated that since the charge-sheet was also under the Act since the deceased was a Dalit, the investigation was assigned to the police officer of higher rank. 6. It appears that in furtherance to the investigation, the prosecution has also examined another police officer Manojbhai Manglaji Balat, p.w.21 Exh.60 who recorded the statement of certain witnesses during the course of investigation. It appears from the deposition of the aforesaid Investigation Officer that the investigation has been made by the police after registration of the complaint, the mudammal has been recovered, the discovery is made of the weapon, the cloths were sent for FSL report, and the other investigation pertaining thereto. 7. As stated above, though panchas have turned hostile, the muddammal, recovery of the cloths, recovery of the other muddamal concerning to the incident and other panchnamas of inquest panchnama etc. in the deposition of Investigating Officer, are proved and they were exhibited for considering the case of the prosecution. 8. It also appears from the deposition of Investigation Officer that the complaint made by the father of the deceased through fax was received late, practically, after the investigation was over. 9. in the deposition of Investigating Officer, are proved and they were exhibited for considering the case of the prosecution. 8. It also appears from the deposition of Investigation Officer that the complaint made by the father of the deceased through fax was received late, practically, after the investigation was over. 9. The learned counsel for the appellant-accused raised the first contention that the eyewitnesses who are examined by the prosecution are doubtful eyewitness inasmuch as there names were not mentioned in the FIR and therefore, they can be said as subsequently got-up or concocted by the prosecution. In furtherance to the submission, it was also contended by the learned counsel for the appellant-accused that the eyewitness referred to in the complaint at the time of incident, i.e. two labourers namely Dana Pitha and other whose name was not known were present at the time of the incident, but Dana Pitha not examined as the witness by the prosecution. It was therefore submitted that the prosecution has not examined such persons who was stated as present at the time of the incident in the complaint and who could be said as eyewitness, but has concocted another eyewitnesses who are not at all referred in the FIR. Therefore, it was submitted that such eyewitnesses cannot be believed nor evidence of the prosecution to that extent can be accepted to prove the guilt of the accused. It was submitted that if the evidence of the eyewitness whose names are not mentioned in the complaint are discarded, the case of the prosecution would fail and therefore, the accused appellant would be entitled to the benefit. 10. Whereas on behalf of the State, the learned APP submitted that it is not obligatory on the part of the State to examine all witnesses and it is the discretion of the State to decide about the examination of the witnesses to prove the case of the prosecution. There is nothing like adverse inference as sought to be canvassed. It was also submitted that if during the course of the investigation, it has transpired that there were also other witnesses who had seen the incident and there statements are recorded and they are examined as witnesses, such is neither prohibited nor their testimony can be discarded by the Court merely because their names were not mentioned in the FIR. 11. 11. It is true that the names of one person, viz. Dana Pitha was mentioned in the FIR. In the very FIR, there is reference to the presence of other labourers whose names were not known to the complainant. Therefore, it cannot said that there was only one person at the time of incident as sought to be canvassed by the learned counsel for the appellant-accused. Further, so far as the right of the prosecution to examine the witness by exercising the discretion to prove the case is concerned, such aspects should not detain us further in view of the decision of the Apex Court in the case of Harpal Singh v. Devinder Singh and another reported at AIR 1997 SC 2914 wherein the Apex Court inter alia had considered the similar contention and has observed at paras 21 and 22 as under: 21. Learned counsel for the accused in this context argued that non-examination of Randeep Rana, who has seen the occurrence, has seriously impaired the core of the prosecution case. No doubt, it would have been desirable if Randeep Rana was also examined by the prosecution in Court. But his non-examination in this case did not cause any ripple affecting the case. 22. A Public Prosecutor may give up witnesses during trial to avert proliferation of evidence which could save much time of the Court unless examination of such a witness would achieve some material use. Randeep Rana, if examined, would only have helped in duplicaton of the same category of evidence as the other two eye-witnesses. The Public Prosecutor, therefore, cannot be blamed for adopting the course of not examining him. If the accused thought that Randeep Rana's evidence would help the defence, it was open to the accused to examine him as a defence witness. 3. Further, on the aspects of adverse inference, in the very decision, the Apex Court observed inter alia at para 24 as under: The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness. 3. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness. 3. Further, it appears from the record that the complaint does refer to the presence of the other labourers at the time of incident. If during the investigation it has transpired that there were also other labourers present, no bar operates to the prosecution in examining the other labourers who were present and who are the eyewitness to the incident merely because their names were not mentioned in the complaint or FIR. On the contrary, in the complaint there is reference to the presence of the other labourers but their names were not known to the complainant. Therefore, the presence of other labourers who have seen the incident is not contradicted by the complainant as sought to be canvassed. The deposition of Bhagwanbhai Pithabhai Vaja, Parbatbhai Dahyabhai Vaja and Arjanbhai Ranabhai Vaja, P.W. 2, 4 & 5 respectively, clearly shows that they were present in the capacity as labourers at the time of the incident. Therefore, if the prosecution has examined them as witnesses, may be in the capacity as eyewitness of the incident, such would not impair the case of the prosecution. The approach on the part of the Court would be to test the truthfulness of the testimony of such eyewitness and not to discard on a mere ground that their names were not specifically mentioned in the complaint or FIR which was recorded at the first instance. If material contradiction is found in the deposition of such eyewitness whose names are not specifically mentioned in the complaint and the Court disbelieves the statement made of such eyewitness, it may stand on different footing, but in a case where even after the cross-examination, the defence has not been able to show any material contradiction to dislodge the statement made by such eyewitness in the deposition, such evidence cannot be discarded for considering the case of the prosecution. 4. Further, it is not sine qua non that the names of all witnesses must be stated in the FIR at the first instance. 4. Further, it is not sine qua non that the names of all witnesses must be stated in the FIR at the first instance. In so many case, it may happen that at the time when the FIR is registered, the complainant may not be fully aware about the relevant facts of the incident. After registration of the FIR, the investigation is to be made by the police and while undergoing investigation, the further evidence may come on record including any material witness who had seen the incident. Therefore, mere non-mentioning of such witness in the complaint which was registered at the first instance would not be fatal to the case of the prosecution in all cases and it may depend upon the facts and circumstances of each case. 5. As stated above, in the present case, there is already a reference to the presence of other labourers at the time of incident. Therefore, the present case is not as that of contradiction with the statement made in the complaint, but could be said as of the other eyewitness who were also present at the time of incident and of whom the reference is also made in the complaint by showing their presence, may not be by name. 6. Therefore, keeping in view the facts and circumstances of the present case, we cannot agree with the contention of the learned counsel for the appellant-accused that the eyewitness are subsequently got up or concocted by the prosecution. Further, in view of the aforesaid facts and circumstances, we find that merely because Dana Pitha was not examined would not be a sufficient ground to draw the adverse inference for impairing or disbelieving the case of the prosecution, more particularly, in view of the observations made by the Apex Court in case of Harpal Singh (supra). Therefore, the contention raised by the learned counsel for the appellant against cannot be accepted. 7. It was next contended by the learned counsel for the appellant-accused that Gangaben who has informed the complainant is also not examined and therefore, non-examination of such witness by the prosecution would be fatal to prove the guilt against the accused. 8. It may be observed that Gangaben even otherwise also is not the eyewitness to the incident, but she has also stated to have received the information about the death of deceased Nathabhai. 8. It may be observed that Gangaben even otherwise also is not the eyewitness to the incident, but she has also stated to have received the information about the death of deceased Nathabhai. Therefore, non-examination of such hearsay witness, in any case, cannot be treated as fatal to the case of the prosecution as sought to be canvassed. 9. The learned counsel for the appellant lastly submitted that the father of the deceased Naranbhai Jesabhai Rathod, P.W.13 in the complaint made by him, had referred to the name of Mula Sidi, Dhiru Sidi, Dilu Kana, and Kana Naran and the said complaint has come on record at Exh.112 in the deposition of the Court witness No.1 Karabhai Sakrabhai Mankadia, the police constable who has produced the said document. It was submitted that the prosecution has neither impleaded them as accused nor any investigation is made in this regard. The learned counsel further submitted that there is no reference of the name of the accused against whom the charge-sheet is filed by the State. Therefore, the attempt was by the learned Counsel to contend that the whole case is bogus and concocted against the accused, who is not referred to as the accused/offender even by the father of the deceased. 10. We cannot discard the whole case of the prosecution including that of the eyewitnesses who have not been contradicted by the defence merely because in the complaint of the father of the decased, the reference is not made of the name of the accused-appellant. 11. Further, it appears from the record and as rightly been referred to by the learned Sessions Judge in paras 23 and 23.1 of the order of the learned Sessions Judge, merely because the name of other accused were there, it cannot be said that the accused is not involved or that the other persons are involved. Further, on the said aspects, the Investigating Officer has been examined and it appears that such complaint or wireless message was received after FIR was registered and after the very complaint, the father of the deceased Naranbhai is examined as P.W.13 and in his deposition, he has confirmed with the case of the prosecution by hearsay evidence that the son of Kana had informed him that Haribhai Sidibhai has murdered his son Nathabhai, and the accused had given axe blow on the neck of his son. Even in the cross-examination, he has admitted of making complaint to the police, but he has stated that he has not seen the incidence. Therefore, the author of the complaint himself has also not contradicted the case of the prosecution in his deposition before the Court. Hence, merely because in the complaint which was sent on fax, names of other persons were mentioned or that the name of the accused was not mentioned would not result into dislodging the case of the prosecution to prove the guilt of the accused. 12. In any case, the said complaint has not come on record except the wireless message, which has been referred to. As against the same, the deposition of the so called author of the complaint, father of the deceased, is before the Court which cannot be said as unbelievable or not trustworthy. 13. Under the circumstances, the contention as sought to be canvassed on behalf of the appellant-accused to make the case of the prosecution fatal cannot be accepted. 14. Hence, the Judgement and Order of the learned Special Judge(Atrocity) and Sessions Judge, does not deserve to be interfered with and deserves to be confirmed. 15. In view of the above, the appeal is meritless and therefore, dismissed.