JUDGMENT R.M.CHHAYA (1) The present appeal arises out of the judgment and order dated 13.05.2005 rendered by the learned Additional Sessions Judge, FTC-3, Bharuch, in Sessions Case No.23/2005, convicting the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code ["IPC" for short] and sentencing him to suffer R.I for life and to pay fine of Rs.5000/-, in default to undergo further S.I for one year. (2) The case of the prosecution may be summarized as under:- The appellant-accused and his father Chimanbhai Karsanbhai Parmar were staying in Rohit Falia of village Manad, Taluka and District : Bharuch. The appellant was unemployed. The appellant's mother and younger brother, Dineshbhai, were staying at Dahej, Taluka and District : Bharuch. It is the case of the prosecution that on 6.12.2004 at about 2.00 P.M., there was some verbal altercation between the appellant and his father Chimanbhai and the appellant rushed with a Tavetha (sic) towards deceased Chimanbhai in order to beat him. Deceased Chimanbhai, therefore, ran outside the house. The appellant chased him, caught hold him and made him lie face downwards. The appellant thereafter removed the clothes of deceased Chimanbhai and caused injuries on his anus portion with tavetha. Victim Chimanbhai succumbed to the injuries at about 6.00 p.m on the same day, for which an FIR came to be lodged on the next day, i.e. on 7.12.2004, by one Jashiben Narsinhbhai Gohil (PW.3), a neighbour of the deceased, with Bharuch Rural Police Station. The police started investigation. The dead body of the deceased was sent for post-mortem examination and certain incriminating articles, which were seized during the course of investigation, were sent to F.S.L for analysis. The Investigating Officer recorded statements of certain witnesses and after obtaining report of Serologist as well as ascertaining the cause of death, on completion of the investigation, submitted charge sheet to the Court of learned Chief Judicial Magistrate, Bharuch. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Bharuch for trial, where it was numbered as Sessions Case No.23/2005. (3) Charge at Exh.3 was framed against the appellant-accused of the offence punishable under Section 302 IPC, which was read over and explained to the appellant, who pleaded not guilty and claimed to be tried. (3) Charge at Exh.3 was framed against the appellant-accused of the offence punishable under Section 302 IPC, which was read over and explained to the appellant, who pleaded not guilty and claimed to be tried. (4) On appreciation of the evidence adduced by the prosecution, the learned trial Judge convicted and sentenced the appellant, as referred to above.Mr. Apurva Dave, learned advocate for the appellant, after taking us through the entire evidence on record, has submitted that the evidence of eye witnesses, namely, Jashiben Narsinhbhai Gohil (PW.3) and Champaben Chandubhai Vasava (PW.5) are full of major contradictions as well as omissions and, therefore, their evidence should not have been relied upon by the learned trial Judge for the purpose of holding that they had witnessed the whole incident. Mr. Dave has submitted that the appellant-accused has been wrongly roped in by the so-called eye witnesses. Mr. Dave has pleaded that though there is evidence on record to show that the appellant used tile to beat the deceased, the same was not sent to F.S.L for chemical analysis. It was urged by Mr.Dave that even on the tavetha, which is the weapon alleged to have been used by the appellant for causing injuries to the deceased and was found lying at the scene of offence, no bloodstains were found. Mr. Dave further argued that the behaviour of the witnesses, who are neighbours of the deceased as well as the appellant, is most unnatural because even though, according to the prosecution, the incident occurred at 2.00 P.M., no one informed the police, nor took the victim to the hospital. Mr. Dave has submitted that P.W.3 as well as P.W.5 have specifically stated in their evidence that there was animosity between the appellant and the witnesses and, therefore, their evidence, in particular, are not reliable and, thus, the prosecution has not been able to prove guilty of the appellant. Mr. Dave has submitted that P.W.3 as well as P.W.5 have specifically stated in their evidence that there was animosity between the appellant and the witnesses and, therefore, their evidence, in particular, are not reliable and, thus, the prosecution has not been able to prove guilty of the appellant. Mr.Dave, after taking us through the oral testimonies of (1) PW.1, Dr.Virendra Charansinh, who performed autopsy upon the dead body of the deceased, (2) PW.3, first informant, Jashiben Gohil, (3) PW.5, Champaben Chandubhai Vasava, (4) PW.6, Dineshbhai Chimanbhai Parmar, (5) PW.11, Samantbhai Girdhabhai Basiya, I.O., and also drawing our attention specifically to the Serological Report, which was produced at Exh.31, has submitted that the learned trial Judge has wrongly convicted the present appellant and, therefore, the order of conviction and sentence deserves to be set aside by allowing the present appeal. (5) Learned Additional Public Prosecutor Mr.Pandya has opposed this appeal. Mr. Pandya has contended that only because both the eye witnesses (PW.3 and PW.5) are neighbours of the deceased, they could not have been termed as chance/interested witnesses. Mr.Pandya has stressed that the medical evidence as well as serological report (Exh.36) clearly prove the guilty of the appellant-accused. Mr. Pandya has specifically pointed out that the bloodstains found on the pent (trouser) of the appellant bore human blood group 'B', which is the blood group of the appellant. Mr. Pandya, learned counsel for the State, therefore, submitted that no error is committed by the learned trial Judge in appreciating the evidence on record and, therefore, the appeal should be dismissed. (6) We have considered the submissions advanced at the Bar and reappreciated the whole evidence on record. So far as the incident in question is concerned, the prosecution has examined eye witnesses Jashiben Narsinhbhai Gohil as PW.3 at Exh.9 and Champaben Vasava as PW.5 at Exh.14 and witness Dineshbai Chimanbhai Parmar as PW.6 at Exh.15, to prove its case against the appellant. 8.1 Witness Jashiben Gohil (PW.3, Exh.9) has stated in her substantive evidence before the Court that at 2.00 O'clock when the incident occurred, she was standing on the otta of her house. 8.1 Witness Jashiben Gohil (PW.3, Exh.9) has stated in her substantive evidence before the Court that at 2.00 O'clock when the incident occurred, she was standing on the otta of her house. She has stated that there was some verbal altercation between the deceased and the accused in relation to lunch and deceased Chimanbhai, therefore, tried to escape, but, the appellant chased him and caught hold and tied him with a rope and dragged him near the door of his house and started beating him. She has also stated that thereafter the appellant brought a tavetha from his house and after removing the clothes of deceased Chimanbhai, caused injuries on his anus portion. The witness has further stated that when she and other persons tried to go near the place of the incident, the appellant had snarled them and threatened them to kill if they would intervene in the incident. She has further stated that deceased Chimanbhai succumbed to the injuries at 6.00 P.M., on the same day and his son Dineshbhai along with his mother and other relatives came at midnight and Dineshbhai was informed about the incident. She has further stated in her deposition that the persons of the Falia informed one Udesingbhai, who telephonically informed the police about the incident, pursuant to which police came and the witness lodged the FIR (Exh.10). Witness Jashiben was subjected to cross-examination, wherein she has stated that she and her husband were doing agricultural labour work. In her cross-examination, she has specifically admitted that on the date of the incident they had gone for agricultural work. She has further stated in her cross examination that the people of their Falia used to go for agricultural work and, therefore, no one would be there in the Falia. She has further stated in her cross-examination that there was enmity between the accused and her family. She has also stated that the deceased and the appellant had no good relations with Dineshbhai and their mother. In her cross-examination, she has stated that the appellant used to make applications against leaders of the village in order to pressurize them, due to which, the whole village was against the appellant. She has also stated in her cross-examination that Champaben Vasava (PW.5, Exh.14), one Punjiben and Jadiben were engaged in the business of selling liquor. In her cross-examination, she has stated that the appellant used to make applications against leaders of the village in order to pressurize them, due to which, the whole village was against the appellant. She has also stated in her cross-examination that Champaben Vasava (PW.5, Exh.14), one Punjiben and Jadiben were engaged in the business of selling liquor. 8.2 Witness Champaben Chandubhai Vasava, who is examined as PW.5 at Exh.14, has stated in her evidence that while deceased Chimanbhai was trying to escape after the verbal altercation, the appellant caught hold him and tied him with a rope and dragged him near his house and beat him with a tile. The witness has further stated that thereafter the appellant brought a tavetha from his house and inflicted blows on the back side of his body with the tavetha. She has stated that at about 7.00 O'clock, deceased Chimanbhai succumbed to the injuries. This witness was also subjected to cross-examination, wherein she has stated that agricultural labourers stay in their locality and they use to leave the locality for agricultural work in the morning and return in the evening. In her cross-examination, she has stated that on the date of the incident, all the persons of the Falia had gone for agricultural work early in the morning and came back at 6.00 P.M. The witness has stated in her cross-examination that the appellant had inflicted 8 to 10 blows to the deceased with tavetha. 8.3 From the evidence of witness Dineshbhai Chimanbhai Parmar, who was examined as PW.6 at Exh.15, we have noticed that on 6.12.2004, i.e. the date of the incident, he was at his house at Dahej. He has stated that on that day, between 7.00 and 8.00 P.M., his elder brother Ishwarbhai, present appellant, had come to his house and informed him that their father was suffering from diarrhoea since last four days and because of that, he expired. He has stated that when he had gone for a Besana ceremony of his relative three days prior to the incident, health of his father was found to be good and thereafter, on the 3rd day, the incident occurred. He has stated that when he had gone for a Besana ceremony of his relative three days prior to the incident, health of his father was found to be good and thereafter, on the 3rd day, the incident occurred. This witness has stated in his evidence that he, along with his mother and relatives, had reached the house of the deceased at Manad at about 12.00 midnight and at that time, Jashiben had informed him about the incident and on the next day, at about 9.00 A.M., he informed Udesingbhai about the incident and Udesing telephonically informed the police. Therefore, the police came to the place of the incident. This witness was cross-examined. In his cross-examination, the witness has stated that there was dispute between the appellant and him and, therefore he was staying separately at Dahej. He has further stated in his cross-examination that the appellant had animosity with the people of the village. He has stated in his cross-examination that whenever he used to visit village Manad, people of the village used to request me to persuade the appellant not to make such applications. On reappreciation of the evidence of the witnesses, we find that there are major contradictions and omissions in their evidence. The evidence of P.W.3 and P.W.5 indicate that both these eye witnesses are agricultural labourers. It emerges from the evidence of eye witness Jashiben (PW.3), first informant, that she was engaged in agricultural labour work and she used to go for work early in the morning and come back at 6.00 P.M., and on the date of the incident, she along with her husband had gone for labour work. Similarly, eye witness Champaben Chandubhai Parmar (PW.5) has stated in her evidence that all the persons of the Falia were doing agricultural labour work and they used to leave their respective houses early in the morning and come back at 6.00 P.M. Under the circumstances, a serious doubt arises whether, in fact, the witnesses had witnessed the incident in question, which is alleged to have occurred at 2.00 P.M. The evidence on record clearly indicates that there was animosity between the appellant and the neighbours as well as many other persons of the village. In fact, PW.6, Dineshbhai Chimanbhai Parmar, younger brother of the appellant, was often requested by the people of the village to persuade the appellant not to make such applications against various persons of the village. Learned advocate Mr.Dave for the appellant has, therefore, rightly submitted that both the eye witnesses were chance/interested witnesses and, therefore, their evidence has to be examined more closely and the same should have been amply corroborated by the other evidence on record. (7) The cumulative effect of the above-referred to evidence is that the presence of P.W.3, Jashiben and P.W.5, Champaben, at the place of the incident at 2.00 P.M., is not free from doubt, coupled with the fact that there was personal animosity between the appellant and the witnesses. The fact remains that the incident had taken place at 2.00 P.M., on 6.12.2004 and the F.I.R came to be lodged on the next day, i.e. on 7.12.2004, after consultation with Udesinhbhai, who happens to be a social worker. No explanation is offered either by the prosecution or the first informant regarding late filing of the FIR. We, therefore, find absence of ring of truth in the oral testimonies of P.W.3 and P.W.5. The prosecution has not been able to lend corroboration to the version of both these witnesses. Eye witness Champaben Chandubhai Vasava (PW.5) has stated in her oral testimony that the appellant had given 8 to 10 blows of tavetha to the deceased; whereas, there was only one injury on the anus portion of deceased Chimanbhai which can be attributed to use of weapon tavetha. Thus, there is contradiction in the ocular and medical evidence regarding injury to the deceased. It is well settled that credibility of a witness should be judged not only from his/her evidence, but also with reference to surrounding circumstances and probabilities. Judged from this view point, we are satisfied that the evidence of eye witnesses Jashiben (PW.3) and Champaben (PW.5) are not credible and do not help the prosecution. As it is difficult to separate truth from the falsehood stated by these witnesses and as the evidence of these witnesses do not inspire the confidence of the Court, the same could not have been acted upon for the purpose of convicting the appellant. Hence, the conviction cannot be sustained on such glaring contradictions. As it is difficult to separate truth from the falsehood stated by these witnesses and as the evidence of these witnesses do not inspire the confidence of the Court, the same could not have been acted upon for the purpose of convicting the appellant. Hence, the conviction cannot be sustained on such glaring contradictions. (8) On perusal of the Serological Report (Exh.36), we find that no bloodstains were found on weapon tavetha. We also find that the tile, by which it was alleged that the deceased was first beaten, was not sent for chemical analysis. It is relevant to notice that the weapons used by the appellant for beating the deceased were not bloodstained at all and this circumstance remains unexplained by the prosecution. We have also noticed a discrepancy in the description of the pent of the appellant-accused in the serological report (Exh.36) and, therefore, it cannot be relied upon for convicting the appellant. On over all view of the matter, we are satisfied that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. The evidence led by the prosecution is not only unsatisfactory, but, it does not inspire the confidence of the Court at all. As observed earlier, it is doubtful whether the incident in question was witnessed by PW.3 and PW.5, as is claimed by them before the Court. As the case of the prosecution is not proved against the appellant as required by law, we are of the opinion that the appellant is entitled to the benefit of a reasonable doubt. (9) For the foregoing reasons, the appeal is allowed. The conviction and sentence of the appellant recorded by the learned Additional Sessions Judge, Fast Track Court No.3, Bharuch, in Sessions Case No.23/2005 by judgment and order dated 13.05.2005, for the offence punishable under Section 302 IPC, is hereby set aside. The appellant-Ishwarbhai @ Lakhiyo Chimanbhai Parmar is acquitted of the charges levelled against him. The appellant be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to the appellant.