JUDGMENT S.G. Shah, J. 1. Rule. Ms. Jhaveri waives service of notice of rule for respondent No. 1. 2. Heard learned counsel for the respective parties and perused the record. 3. The appellant herein has been convicted by the Additional Sessions Judge of Ahmedabad in Sessions case No. 253 of 1995 imposing rigorous imprisonment for seven years for the offence under Section 304 Part II of I.P.C. Out of the total sentence of seven years, by impugned judgment and order dated 30.9.1999, the petitioner has undergone imprisonment for three years and four months and, thereby, at present he is on bail pursuant to order of this High Court considering the health of the appellant and his wife. 4. If we peruse the record to ascertain that whether there is ample and sufficient evidence on record to confirm the conviction of the appellant and to endorse the sentence of seven years under Section 304 Part II, the following facts transpires; 4.1 It is the case of the prosecution before the Sessions Court that on 3.6.1995, when deceased Vijendrakumar was going towards Chhatral from Bapunagar on his scooter with one Rajeshkumar Tiwari and niece of the Vijendrakumar on his scooter, near Sabarmati Petrol Pump, they noticed that the stock of petrol in the scooter has gone into reserve mode and, thereby, they have to fill up the petrol in their scooter. For the purpose, they stopped at the Sabarmati petrol pump where they have asked the watchman to fill up the petrol. However, it was 2.00 a.m. and, therefore, watchman was sleeping. He has conveyed that he could not fill up the petrol since petrol pump is closed and locked. The record discloses a further story to the effect that at such juncture, there was a hot discussion and dispute between both of them, wherein, there are rival stories in a form of allegation against both the sides. It is the say of the complainant and prosecution witness that when deceased victim has pressed for petrol, the watchman has got annoyed and taken away screw driver from his bed and blow it on the chest of the victim which resulted into grievous injuries for which victim has ultimately succumbed. It is the say of the complainant and prosecution witness that when deceased victim has pressed for petrol, the watchman has got annoyed and taken away screw driver from his bed and blow it on the chest of the victim which resulted into grievous injuries for which victim has ultimately succumbed. Whereas, in defence, it is emphasized that it was victim who has started the quarrel by abusing the watchman and by beating him and, therefore, if at all incident is proved against the watchman, it is the case of self defence under sudden provocation i.e. without intention and plan to commit an offence under Section 302 or to commit any other offence and that because of injuries by a screw driver, a person could not die. However, in addition to such defence, the appellant-accused has also challenged the question of his identity itself, contending that he is not a person namely Bajrang at all and he is not involved in the incident at all. However, the real watchman Bajrang could not be found out by the Police and, therefore, Police has wrongly filed a chargesheet against him though his name is Kamlesh and not Bajrang. 4.2 The rest of the story regarding factual details after the incident till chargesheet are not much material, however, it is well described in the impugned order and, therefore, I do not think it necessary to reproduce all minute details, considering the fact that it is admitted position that because of the injuries received by the victim, ultimately, victim has succumbed to death and after investigation, Police has filed chargesheet against the present appellant, he was tried and convicted as per impugned judgment for seven years under Section 304 Part II. 5. So also when the impugned judgment is describing the entire story of all available evidence on record in detail, there is no reason to reproduce the list of evidence except to scrutinize the same for deciding the appeal in accordance with law. 6. The evidence on record has been scrutinized with reference to the rival submissions, from the paper book which includes depositions of all the witnesses and all documentary evidence proved on record. 7. The outcome of such scrutiny is discussed hereunder; 7.1 PW-1 at Exh.15 is complainant Rajeshkumar Shriram Tiwari, who was pillion rider on the scooter of the victim on the date of incident. 7. The outcome of such scrutiny is discussed hereunder; 7.1 PW-1 at Exh.15 is complainant Rajeshkumar Shriram Tiwari, who was pillion rider on the scooter of the victim on the date of incident. He has narrated the story of incident as per complaint and as recorded hereinabove that how and why they had been to the Sabarmati petrol pump. So far as actual incident is concerned, it is his say that when they reached to the petrol pump, Bajrang was sleeping on a cot and victim Vijendrakumar has called him for filling the petrol and requested him twice or thrice but Bajrang has started to abuse the victim Vijendrakumar. It is his say that since scooter could not been stopped as it's switch was not functional, Vijdendrakumar has taken the scooter near the cot of the appellant and they were talking at that place. When Bajrang was abusing the victim Vijdendrakumar, he got down from the scooter and asked the Bajrang not to abuse him and at that time, Bajrang got annoyed and taken a screw driver from his cot and given 4-5 blows on the chest of victim Vijendrakumar. The factual details relating to other situation viz. position of the niece of the Vijdendrakumar and the scooter itself are somewhat surprising when witness says that niece of Vijendrakumar was already sleeping and, therefore, they have managed her to sleep on another cot and scooter was kept on stand after stopping its engine. But in between Bajrang has beaten the Vijdendrakumar by screw driver as aforesaid and, thereupon, Vijendrakumar had fallen down with bleeding and hence, this witness has taken him on his legs and tried to throw water on his face and to pore water in his mouth but Vijendrakumar could not get up and in between Bajrang has called one another person who was sleeping in the petrol pump. However, said person has come and he told the watchman “Bajrang, what you have done”. Now, the most interesting or material part of the evidence is to the effect that witness categorically admits that he was not knowing anybody at the petrol pump. Though he does not name or identify the person who was coming from the petrol pump but repeatedly states that the name of the watchman was Bajrang. Now, the most interesting or material part of the evidence is to the effect that witness categorically admits that he was not knowing anybody at the petrol pump. Though he does not name or identify the person who was coming from the petrol pump but repeatedly states that the name of the watchman was Bajrang. He further added that after the incident, Bajrang has tried to call the owner of the petrol pump and when he could not contact him, the watchman has filled the petrol in their scooter and taken their scooter and went somewhere for 10-15 minutes and came back with scooter at petrol pump after 10-15 minutes. Thereafter, witness has went to Chattral on the same scooter at the house of one Jashvantbhai, friend of Vijendrakumar and said Jashvantbhai has managed for one fiat car on rent and, thereupon, they return to Sabarmati petrol pump in such fiat car and from there, they have taken the victim to the Civil Hospital. By that, it was 5.00 a.m. But he could not recollect the name of the driver of the fiat car. He has also narrated that after reaching at the place of Jashvantbhai, he has to make him to wake from sleep and he has mentioned him about the incident before they started for Sabarmati petrol pump in rented car as aforesaid. It is further deposed that he does not know the driver of the fiat car and that he alone had gone to Chhatral leaving the niece of Vijendrakumar at the petrol pump and then they have taken the victim to the hospital but he does not know the name of the Doctor where Doctor has declared him died. It is further contended that thereafter Police has reached the hospital and recorded his complaint at the hospital after calling him outside the hospital and at that time, it was 6.30 a.m. and he signed the complaint in English but it was narrated to Police in Hindi and Police has recorded it in Gujarati. Thereby, he identified his signature and after reading out the complaint to him, it was exhibited. He identified the accused by name as Bajrang, whereas accused has stated that his name is Kamlesh Siddharth Bhandari, which is recorded by the Court as Kamlesh @ Bajrang. Thereby, he identified his signature and after reading out the complaint to him, it was exhibited. He identified the accused by name as Bajrang, whereas accused has stated that his name is Kamlesh Siddharth Bhandari, which is recorded by the Court as Kamlesh @ Bajrang. It is further stated by the witness that, thereafter, they had been to petrol pump where police has investigated the incident where he showed the blood stains at the petrol pump and identified relevant Muddamal articles. 8. Considering the story of incident and evidence of this witness as he is sole eye witness to the incident, he was cross examined at length by the advocate for the accused, wherein, he has admitted that he does not know the Gujarati language i.e. he could not read and write in Gujarati. It is further stated that he could not read the Gujarati handwriting but can read the Gujarati newspaper. However, he has admitted that right from Sabarmati to Kalol is highway road and, there were incidents of loot on petrol pump, but he does not admit that, therefore, petrol pumps remained closed after 12.30 by midnight. However, he admits that the incident at the petrol pump was completed just in 2-3 minutes and it was dark night and refused the suggestion that there were 3-4 men at the petrol pump at the relevant time, re-affirming that there were only two persons and that no articles like rupees, spectators, etc. of victim Vijendrakumar was dropped down at the place of incident and to avoid to confront such statement, he further clarified that he had not seen any such article since he was afraid of the incident. He has admitted some contradictions between his complaint and his deposition, however, he tried to explain that he does not think it proper to disclose all such facts in the complaint. However, interestingly the fact remains that though it was not disclosed in the complaint, it has come on record that they had been to Ahmedabad on the same day morning at about 10/11 a.m. and they had visited their relatives viz. his brother Ramakant as well as father of the Vijendrakumar. However, interestingly the fact remains that though it was not disclosed in the complaint, it has come on record that they had been to Ahmedabad on the same day morning at about 10/11 a.m. and they had visited their relatives viz. his brother Ramakant as well as father of the Vijendrakumar. He denied the suggestion that he and victim had consumed liquor and taken non-vegetarian food before starting to Chhatral and that he has not disclosed before the Police that they stopped at the petrol pump because position of petrol in their scooter was in reserve mode. However, he has admitted that no identification parade was held before the Magistrate and that he was not knowing the accused either by face or by name before the incident. This is material admission so far as identification of the accused in such a case is concerned, more particularly, when incident has taken place at about 2.00 a.m. on a dark night and when there is no other eye witness except the complainant. Thereafter, defence lawyer was able to get admission of several other contradictions which are touching the actual incident and if we peruse paragraph 10 of such cross examination on page No. 8, it becomes clear that the witness has not only added but modified and clarified the situation of the incident which was never disclosed in the FIR. This would certainly create a doubt about the veracity of the witness. Thereafter, he was cross examined about the other aspects of the incident that who is responsible for filling the petrol i.e. whether watchman or the person who is sleeping in the petrol pump etc. where witness could not respond probably even as a prudent man and he denies the suggestion that in-fact Vijendrakumar consumed the liquor beyond limit and, therefore, he had committed an accident on road and fallen down on his own and that the person to whom scooter was dashed i.e. who was saved by the accident had beaten Vijendra kumar by some weapon and at that time, he ran away from the place of incident and that he has falsely implicated the accused when he came to know that Vijendra kumar has died. However, he admits addition of his story from the complaint since he has narrated so many things in detail in his deposition rather than complaint. However, he admits addition of his story from the complaint since he has narrated so many things in detail in his deposition rather than complaint. The other material and important admission is to the effect that witness admits that he did not try to stop the quarrel between the victim and accused, then, he realized that what he has deposed and, therefore, he said on his own that he has asked Vijendrakumar that why they are quarreling. He further admits that he was not knowing anybody at the petrol pump. Similarly, he admits that he has not disclosed in his FIR about the story which he has narrated in his examination-in-chief that accused has filled up the scooter with petrol and gone somewhere and returned back in 10-15 minutes. However, so far as blood stains on scooter is concerned, he admits that he has not shown any blood stains on scooter to the police and that police has not recovered the scooter because when he went to Chhatral, he left the scooter at Chhatral and returned back in fiat car. He admits that Chhatral is at about 30 kilometers from Sabarmati. Thereafter, again, he admitted so many contradictions but so far as blood stains on scooter are concerned, witness has to admit that he has not disclosed them to the police. So also there is no disclosure about the light at the place of incident. 9. Irrespective of rest of the evidence on record, the deposition of this witness itself creates so many doubts. So also there is no disclosure about the light at the place of incident. 9. Irrespective of rest of the evidence on record, the deposition of this witness itself creates so many doubts. He is the only eye witness of the incident and, therefore, first of all his attitude is seems to be somewhat irresponsible or un-natural, inasmuch as, when he says that he is serving as a Supervisor in a Mill and when he had been to the house of his brothers as well as at the house of the father of the victim in Ahmedabad City, and when states that they started at about 10.00 pm from the house of their relative towards Chhatral, he is unable to explain how it becomes 2.00 am for reaching to the Sabarmati petrol pump and after the incident, instead of going either to the police station or to the nearest hospital or to the Civil hospital or to the house of his brother or to the house of victim's father, thereby, there are five places where he can immediately reach after the incident, why he has traveled thirty kilometers all alone in dark night to Chhatral that too on a scooter which was not having sufficient fuel to call upon a friend of the victim rather than calling his own brother and father of the victim who are in nearby within the city area. This attitude and action of the witness creates a great doubt in his entire story which he has narrated both, in FIR and the deposition. In addition to such doubt, when there was no identification parade held by the Investigating Agency, though there is a question of identification and when there is admission by the witness that he was not knowing the accused either by name or by face before the incident and, more particularly, now when accused has put forward a defence that he is not Bajrang but Kamlesh and he has been falsely implicated in the incident. Moreover, witness has categorically admitted that after the incident, he left the hospital in the morning and, thereafter, he is not in contact with the family of the victim and he does not know the further development. Moreover, witness has categorically admitted that after the incident, he left the hospital in the morning and, thereafter, he is not in contact with the family of the victim and he does not know the further development. Such admission also shows that practically though he is complainant he is not narrating the correct story of the incident and there is every possibility in-fact they have made with some extent and probably the victim due to accident had beaten the victim for which he succumbed to death and the act of rushing to Chhatral i.e. at about 30 kilometers even after noticing that victim is having bleeding from his chest certainly creates a doubt that probably victim was heavily injured and, therefore, complainant wants him to be shifting to his house at Chhatral alone than taking immediately him to nearest hospital after the incident. It cannot be ignored that in such cases, the evidence must be cogent and reliable enough to confirm the commission of an offence by the accused since he is being punished by withdrawing his personal liberty and any shadow or doubt in prosecution evidence would certainly goes in favour of the accused to acquit him even by extending benefit of doubt. It is also well settled principle of criminal jurisprudence that the prosecution must prove commission of an offence by a particular person i.e. accused and there should not be any presumption for commission of such offence, or there cannot be any lacuna and doubt in evidence of the prosecution. 10. Thereby, the evidence by sole eye witness itself is sufficient to create a doubt in the prosecution case. However, since prosecution has examined several other witnesses, though none of them are eye witnesses, at-least basic details and relevant version of each of them needs to be scrutinized, since this is a regular appeal. 11. PW-2 at Exh.17 is Jashvantsinh Madansinhji Satavat. He in-fact endorsed the misdeed by the PW-1 - complainant when he admits that on the date of incident he was at Chhatral at his house, when complainant has come to his place disclosing that victim has been beaten at petrol pump near Sabarmati and becomes unconscious and, therefore, complainant has called him to go with him. Therefore, he has taken a car of one neighbourer and asked another neighbourer namely Satish to drive the fiat car. Therefore, he has taken a car of one neighbourer and asked another neighbourer namely Satish to drive the fiat car. Now, surprisingly this witness has changed the name of victim from Vijendrakumar to Vijay kumar and though complainant has disclosed somewhere, the name of the driver of the fiat car as Ravi. This witness identified him as Satish. Thereafter, entire deposition of the witness is confirming the story narrated by the complainant but this witness has also admitted so many contradictions from police statement and on the contrary, it confirms that complainant, as aforesaid, instead of calling the nearby person, reaching to Chhatral for the help of this witness which is absolutely unnatural. To that extent, the entire deposition and cross examination makes it clear that the witness is not much aware about the factual details and, therefore, it seems that he is also a chance witness or at-least he is trying to hide the real fact from the Court while deposing against the accused. 12. PW-3 at Exh.18 is Dineshkumar Shankerlal Rathod, whose statement was recorded by the police is a second person found at the petrol pump as per the statement of the complainant in the complaint. Surprisingly, this witness has not supported the case of the prosecution to any extent and, thereby, he categorically denies that they have never kept a watchman on their petrol pump and that no incident whatsoever has taken place at petrol pump as narrated by the complainant in his complaint and that he does not know the accused or any person as Bajrang or Bajrang @ Kamlesh and that he has never uttered a word that “Bajrang, what you have done” after the incident as disclosed by the complainant and though learned Public Prosecutor has cross examined him in detail, prosecution could not prove anything from this witness. Now, therefore, when complainant admits that this Dinesh was also present at the place of incident and uttered the words that “Bajrang, what you have done,” then deposition of such witness is equally important, but when he does not support the prosecution case, only because he was declared hostile, would not prove the case of the prosecution against the accused so as to convict him and to send him behind bar for seven years as done by the impugned judgment. On the contrary, during his cross examination, it has been brought on record by the defence lawyer that in-fact there are two petrol pumps near Sabarmati, one namely Mayur petrol pump and another is Jayhind petrol pump and, there is another petrol pump at some distance namely; Bharat petrol pump and at that time, all the petrol pumps are generally closed by 10.00 pm which was written by red colour on each petrol pump. Therefore, it is also clear that if victim and complainant could not get petrol pump from one and if they are using two wheelers, they must be aware that petrol pump may not be functional at 2.00 a.m. and, therefore, also the entire story is absolutely unbelievable. 13. PW-4 at Exh.20 namely Rakesh Fulsing Yadav was examined as a panch witness of the place of incident. However, he also does not support the prosecution case when he says that police has not recovered anything from the place of incident in his presence and that he had simply singed the panchnama when asked by the police. 14. PW-5 at Exh. 21 namely Ramzanbhai Ismailbhai Shaikh is also panch witness. Though he identified the accused stating that he was there in the police station when police has called him in police station, he does not support the prosecution case except signing the panchnama because he does not admit that proceedings of panchnama was carried out in his presence or any Muddamal was recovered in his presence. 15. PW-6 Jivrajkumar Valjibhai Pandav at Exh.23 is police constable, who has recorded intimation at Civil Hospital and he has recorded the incident and conveyed it to the concerned officer in due course. Therefore, he is a mere witness of the procedure but when prosecution case could not be proved by the eye witness, this procedural witness has no much bearing on the determination of the case. However, in cross examination, he has to admit that the intimation book neither show the serial number nor their signature. Therefore, even this intimation notes are of no use. 16. PW-7 Visabhai Panchalbhai Solanki at Exh.24 has simply recorded the intimation forwarded by the previous witness in relevant register at the Sabarmati police station and, therefore, again, he being a procedural witness, he does not prove the commission of offence by the accused beyond doubt. Therefore, even this intimation notes are of no use. 16. PW-7 Visabhai Panchalbhai Solanki at Exh.24 has simply recorded the intimation forwarded by the previous witness in relevant register at the Sabarmati police station and, therefore, again, he being a procedural witness, he does not prove the commission of offence by the accused beyond doubt. However, this witness has also no option but to admit that the entry referred by him is not properly recorded and he does not have personal knowledge of such entry. 17. PW-8 at Exh.25 is Dr. Ravindrabhai Balasaheb Deshmukh who has examined the victim and carried out post mortem and, therefore, he has narrated the details of medical examination and post mortem note. Though, he was cross examined at length, in my opinion, there is no dispute regarding the death and injury to the victim, therefore, though there are some several admissions in his cross examination, when there is no sufficient evidence to confirm the conviction, such deposition is not much material at this stage. 18. PW-9 Hajarilal Vishvambhardayal Sharma at Exh.27 is father of the victim. It is his say that his son and complainant, who was working under his son had been to his house at about 10.00 pm and they left their house after mid night and reached to their place of service and in morning PW-2 Jashavantbhai who was also working under his son came in the morning and disclosed that his son has been murdered in a quarrel that took place at a petrol pump but it should not be disclosed to the family members of the witness and, thereupon, with his another son Rajendrabhai and Jashvantbhai had been to the Civil Hospital where he found that his son was dead. Thereafter, he narrated story as disclosed by the complainant confirming that it was conveyed to him by the complainant. Therefore, fact remains that he is not the eye witness and as aforesaid when he was available in Ahmedabad, there is no reason for the complainant to first rush to the Chhatral and to call PW-2 rather than to reach the house of this witness where brother of the victim namely Rajendrabhai is also available. This witness is also cross-examined at length and he has also to admit several contradictions. This witness is also cross-examined at length and he has also to admit several contradictions. However since he is not the eye witness, he does not confirm the commission of offence by the accused beyond reasonable doubt. 19. PW-10 Haidarmiya Rasulmiya Malek at Exh.28 is PSO of Sabarmati police station, who has registered the FIR and carried out further administrative activities for assigning the investigation to concerned Investigating Officer and, therefore, except confirming the procedural part of the investigation and chargesheet, he does not know about the incident. Whereas, PW-11 Atulbhai Gunvantbhai Patel at Exh.33, PW-12 Maheshbhai Shankerbhai Bhil at Exh.34 and PW-13 Rameshbhai Chothmalbhai Nayi at Exh.35 have not supported the case of prosecution when they were examined as panch witnesses regarding recovery of several Muddamal articles like panchnama of Muddamal articles, inquest panchnama, etc. 20. PW-14 at Exh.36 is Sajubha Jilubha Gohil who has investigated the complaint and filed chargesheet and, therefore, he has also narrated the procedural part of investigation and chargesheet and, therefore, he does not prove the commission of offence by the accused by cogent and reliable evidence beyond doubt. He has also to admit several contradictions and suggestions by the defence version to confirm that there is some lacuna in the investigation. 21. So far as documentary evidence is concerned, except FIR at Exh.15 and PM note at Exh.20, all the Panchnamas are though explained on record, the contention thereof are not supported by the concerned witnesses and, therefore, such documentary evidence being Exh.38, 45, 49 and 56 are not of much material, whereas, documents relating to investigation being intimation note at Exh.30, 31, report at Exh.37 and 48, acknowledgment at Exh.51 and 53, opinion of FSL at Exh.54 and 56 and notification at Exh.52 though proves the manner of investigation, it does not prove the commission of offence by accused beyond reasonable doubt. 22. 22. As against that, if we peruse the impugned judgment, it seems that learned Sessions Judge has relied upon the incident only that when there is death of a person and when complainant has narrated the story of incident in detail, there must be some culprit and, therefore, when there is no clinching evidence against the accused though charges are under Sections 302, 323 and504 of I.P.C., while confirming the conviction, the Court has convicted the accused only under Section 304 Part II but by grave and harsh punishment of seven years. 23. The discussion hereinabove makes it clear that in-fact there is no sufficient, reasonable and cogent evidence so as to believe and determine that it was the accused and accused only who has given a fatal blow as alleged in the FIR to the victim so as to commit an offence as alleged. When factual details are enough to conclude that there is no sufficient evidence to confirm the conviction, I do not wish to enter into legal points raised by the appellant. However, it cannot be ignored that defence lawyer has cited several cases before the Sessions Court but Sessions Court has discarded them. In any case, when there is no sufficient evidence to confirm the conviction, there is no reason to dismiss such citations. 24. Therefore, there is substance in the submission of the appellant and grounds in appeal memo to quash and set aside the impugned judgment and order and to conclude that the appellant needs to be acquitted and released from the charges lodged against him. The grounds of appeal are also in detail and when it is already there on record, I do not see any reason to elaborate all of them in this judgment. 25. For the foregoing reasons, this appeal is allowed and sentence of conviction of the appellant by the impugned judgment and order is quashed and set aside. Thereby, the appellant is acquitted. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith. Bail and bail bonds, if any, stand cancelled.