JUDGMENT : A.B. Chaudhari, J. (Oral) – Being aggrieved by the Judgment and Order dated 21st February, 2003, passed by learned First Ad Hoc Additional Sessions Judge, Bhandara, in Sessions Trial No. 23 of 1999, by which the learned Trial Judge convicted the appellant - Accused No.1 of the offence punishable under Section 307, Indian Penal Code, and sentenced him to undergo Rigorous Imprisonment for three years and to pay a fine of Rs. 3,000/-, in default, further Rigorous Imprisonment for nine months, the present appeal was filed by him. 2. In support of the appeal, learned counsel for the appellant submitted that in the hospital, the police had recorded the statement of the complainant/victim Gajanan Hatwar [PW 3], who had not named any of the accused persons, much less the present appellant as the assailant. On the contrary, he named a stranger - a tall, well-built person assaulting him by means of a sword stick twice and then running away. The learned counsel then submitted that admittedly the victim Gajanan [PW 3] and the present appellant and the other accused persons are closely related to each other and, therefore, it is difficult to believe that he would not name them in the first statement before police, except saying that some stranger had assaulted by means of a sword stick. He then submitted that the evidence of Gajanan [PW 3] has been shattered in the cross-examination, inasmuch as assault by the appellant and others is an omission amounting to contradiction duly proved from the evidence of Investigating Officers - Nilkanth Waghmare [PW 7] and Mahendradas Deomurar [PW 9]. That is the material omission in respect of the actual assault by the accused persons and the Trial Judge, however, termed it as a minor omission. He submitted that the omission in respect of the actual assault cannot be said to be a minor omission and that is a fact which is corroborated by the statement [Exh.32], which was first in point of time. He then submitted that there is no recovery or discovery of the weapon from any of the accused persons, including the appellant, nor any blood-stained clothes and, therefore, it was too risky for the learned Trial Judge to record the conviction against the appellant. He, therefore, prayed for reversal of the judgment of conviction. 3. Per contra, Mrs. He then submitted that there is no recovery or discovery of the weapon from any of the accused persons, including the appellant, nor any blood-stained clothes and, therefore, it was too risky for the learned Trial Judge to record the conviction against the appellant. He, therefore, prayed for reversal of the judgment of conviction. 3. Per contra, Mrs. Joshi, learned APP, supported the impugned judgment and order of conviction, and submitted that though in the First Information Report, the names of the assailants, i.e., the appellant and other accused persons were not mentioned, nevertheless in the supplementary statements, the names were mentioned and, therefore, the prosecution proved its case beyond any doubt. She further submitted that there is also evidence of Rajesh Hatwar [PW 4], Hiraman Hatwar [PW 5] and Mahesh Charde [PW 8] which corroborated the testimony of the complainant - victim. She, therefore, submitted that the appeal deserves to be dismissed. 4. I have seen the reasons recorded by the learned Trial Judge for recording the order of conviction. In para 22 of his Judgment, learned Trial Judge stated that omissions brought in the evidence of Gajanan [PW 3] were minor and inconsequential. I quote the extracted portion from para 22, which reads thus:- "22. Few omissions and contradictions were brought out on record, but they are minor. F.I.R., was recorded without any loss of time. Under section 307, IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. .." As to the evidence of the other witnesses, Trial Judge discussed the same in last part of para 21 which I quote hereunder:- "21. ................................On going through the evidence of PW 3 Gajanan, PW 4 Rajesh and PW 5 Hiraman, it appears that there is variance on material point. PW 3 Gajanan has deposed that accused 2, 4 and 5 had obstructed him while he was on the bicycle and accused 1 and 3 had assaulted by dagger on his hands and stomach. PW 4 Rajesh who was sitting on the carrier of the bicycle at the time of incident, has deposed that accused 1 and 4 shouted as Gajanan has come. PW 4 did not whisper a single word against the accused no.5. PW 5 Hiraman did not whisper a single word against accused Nos. PW 4 Rajesh who was sitting on the carrier of the bicycle at the time of incident, has deposed that accused 1 and 4 shouted as Gajanan has come. PW 4 did not whisper a single word against the accused no.5. PW 5 Hiraman did not whisper a single word against accused Nos. 2,4 and 5 in his examination-in-chief. The testimony of PW 3 Gajanan, PW 4 Rajesh and PW 5 Hiraman cannot be discarded in to to merely on the ground that there is some discrepancy regarding presence of accused 2,4 and 5." Trial Judge did find discrepancy regarding presence of accused nos. 2, 4 and 5. However, he believed that accused no.1 had actually assaulted by means of a dagger. I then quote para 23 from the judgment of the Trial Judge wherein he has given reasons for acquittal of accused nos. 2,4 and 5, which reads thus:- "23. PW 3 Gajanan though deposed that accused 1 & 3 had stabbed him by sword-sticks on his abdomen, but in the report (Ex.32) and statement recorded on 1-8- 98, supplementary statements recorded on 2-8-98 and 4- 8-98, there is no mention about stabbing by accused no.3. In the statements recorded on 2-8-98 and 4-8-98 PW 3 Gajanan has stated that accused no.1 Manik had stabbed him by sword-stick on his abdomen. Thus, there is improvement regarding assault by accused No.3 Radheshyam. Had there been an assault by accused 1 and 3, PW 3 Gajanan would have definitely whispered something against accused No.3 Radheshyam in the report [Exh.32] or statement recorded on 1-8-98 or supplementary statement recorded on 2-8-98 or another supplementary statement recorded on 4-8-98. PW 3 Gajanan has deposed that accused 2,4 and 5 had obstructed his bicycle, but there is no corroboration on this point. His son PW 4 Rajesh did not depose against accused No.5. PW 4 Rajesh has deposed that accused 1 and 4 had shouted that Gajanan has come. PW 5 Hiraman too did not depose against accused 2, 4 and 5. Thus, there is no cogent evidence against accused 2, 4 and 5. Similarly, non-mentioning of name of the accused no.3 in the report [Ex.32] and statements recorded on 1-8-98, 2-8-98 and 4-8-98 is fatal to the prosecution." 5. PW 5 Hiraman too did not depose against accused 2, 4 and 5. Thus, there is no cogent evidence against accused 2, 4 and 5. Similarly, non-mentioning of name of the accused no.3 in the report [Ex.32] and statements recorded on 1-8-98, 2-8-98 and 4-8-98 is fatal to the prosecution." 5. I have gone through the evidence of Gajanan [PW 3], who is the injured witness, so also Exh.32, his statement to the police in the hospital. Perusal of the evidence of Gajanan [PW 3] shows that the victim as well as the appellant are closely related to each other and there was a dispute about some agricultural property. The relevant portion of Exh.32, the statement of the victim Gajanan [PW 3], is quoted below:- ".........Immediately, after it, 'one tall, strong and stout boy, wearing white shirt and full-pant came from my back side, in the darkness. He was holding an iron sword-stick in a white pouch. He took the sword-stick out of the pouch and delivered its first blow on my right hand, as a result of which, I sustained an injury near the elbow. Immediately after it, he delivered another blow on the right side of my abdomen, due to which I sustained bleeding injury. After that he fled from there by taking the weapon. Anil Sukram Badwaik, Manik Mahadeo Hatwar, Kartik Mahadeo Hatwar and Radheshyam Thote were seen fleeing with the stranger. I myself have seen them..." Perusal of the above portion, to my mind, clearly shows that one tall, strong and stout boy came in the darkness with a sword-stick in his hand which he pulled out and gave first blow on his right hand and delivered another blow on right side of his abdomen and then fled from the spot along with the weapon. He then stated that accused persons had run away with him. It is, thus, clear from the statement that Gajanan did not name the persons including the appellant, and on the contrary, named some stranger as the assailant. There is admittedly no investigation about the stranger described by him in his statement [Exh.32]. There is no recovery or discovery of weapon namely dagger from the accused persons including the appellant, nor any blood-stained clothes. There is admittedly no investigation about the stranger described by him in his statement [Exh.32]. There is no recovery or discovery of weapon namely dagger from the accused persons including the appellant, nor any blood-stained clothes. It is highly improbable and impossible to believe that Gajanan [PW 3], who is very closely related to the appellant, would fail to name him as the assailant in his very first statement given to the police in the hospital, wherein he described the incident in all details. Not only that he also named the appellant not as the assailant, but a person running away after having described that the stranger had stabbed him by means of a sword stick. In my opinion, the Trial Judge went wrong in terming the omissions in his evidence about actual assault by accused persons by a sword stick as amounting to omissions. The omissions were very, very material because he did not state so in his statement before police. Even if he stated in the supplementary statements, there is still no explanation as to why he having named the appellant Manik as the person running away, did not describe him as the person actually assaulting him by means of a sword stick. It is not, therefore, possible for me to hold that Gajanan [PW 3] could be believed for recording conviction against the appellant Manik. Admittedly, there is an enmity over the agricultural property amongst the victim and the accused party, including the appellant and, therefore, Trial Judge should have, in any case, extended the benefit of doubt to the appellant. 6. The reasons recorded by the learned Trial Judge quoted by me above are far from satisfactory and, I, therefore, hold that the Judgment and Order recording conviction and sentence cannot be countenanced. 7. In the result, the appeal must succeed. As a sequel, I make the following order:- ORDER [a] Criminal Appeal No. 161 of 2003 is allowed. [b] The impugned Judgment and Order dated 21st February, 2003 passed by First Ad Hoc Addl. Sessions Judge, Bhandara, in Sessions Trial No. 23 of 1999 convicting and sentencing the appellant of offence punishable under Section 307, Indian Penal Code, is set aside and the appellant is acquitted of the charge under Section 307, Indian Penal Code. [c] Fine if paid, be refunded. [d] Bail bonds stand cancelled.