JUDGMENT S.G. Shah, J. 1. Heard learned advocate Mr. J.M. Panchal with learned advocate Mr. Y.V. Vaghela for the appellant Nos. 1 and 5, learned advocate Mr. H.D. Chudasama for appellant Nos. 2 and 4 and learned APP Mr. K.L. Pandya for respondent - State. 2. The appellants have challenged the judgment and order dated 20.12.2006 by the learned Additional Sessions Judge, FTC No. 4 at Viramgam in Sessions Case No. 8 of 2004. By such impugned judgment and order, the Sessions Court has held all the appellants guilty under different sections of Indian Penal Code vise. 147, 148, 149, 506(II) and 304 Part-II and awarded following sentences to them: Appellant Sections Sentence Fine Sentence in default of payment of fine. 1, 3, 4, 5 147, 148, 149, 506(II) 4 years R.I. 2 304 Part – II, 147, 148, 149, 506(II) 10 years R.I. Rs.10,000/- 1 year R.I. 3. The record shows that on filing of present appeal, this Court has granted bail to accused Nos. 1 and 3 to 5 and, therefore, at present, they are on bail. Whereas bail to accused No. 2 was refused and during pendency of this appeal, he has been released from jail after completion of imprisonment as per the impugned order of conviction and sentence. 4. However, learned advocate appearing for accused No. 2 has requested to proceed further in the appeal and even to extend benefit of doubt to the appellant considering the fact that, he was serving in the Army and, therefore, if at all his conviction is set aside he would get service benefits. Similar is the situation for the remaining accused, who are on bail, since if they are acquitted, they may not have to go into the custody to undergo remaining period of sentence and would also get service benefits in case of acquittal. It is to be recorded here that other accused have remained in custody for approximately more than 5 months pending their bail applications and trial. 5. It is to be recorded here that other accused have remained in custody for approximately more than 5 months pending their bail applications and trial. 5. If we peruse the records and proceedings, it becomes clear that at exhibit 10 charges were framed against all the accused on 13.09.2004 to the effect that all of them have with common intention and by creating unlawful assembly on 03.10.2003 in village Kumarkhan at about 22:00 hrs threatened the victim that why he is going to the villages where some of the accused are working for livelihood as Garas and at that point of time, accused Nos. 1 and 5 have caught hold of left hand of the victim and accused Nos. 3 and 4 have caught hold of right hand of the victim and accused No. 2 has given knife blow on left side of the stomach of the victim and thereby they all have committed offences as referred herein above. 6. If we peruse the evidence, prima facie, it becomes clear that though several witnesses have deposed in favour of the prosecution case, the overall reading of entire record makes it clear that they are stereo-type evidence and all the witnesses have decided to depose in verbatim, which in general is not possible or at least it seems to be articulated evidence. 7. Learned advocate Mr. Panchal has, therefore raised following 4 major issues to evaluate such evidence, since it is resulting into conviction and, thereby creates stigma upon liberty and lives of the accused, when they were serving in Army and revenue department. "(1) There was no knowledge to other accused about knife being carried by accused No. 2, if at all knife blow by accused No. 2 is proved, as alleged. (2) Accused Nos. 1 and 2 were serving in Army whereas accused No. 5 as Talati and they have no reason whatsoever to quarrel with the victim since they have no garas to be shared with anyone. (3) Even if, it is believed that incident had taken place as alleged, it is articulated story since the story of caught holding the victim in typical manner is an artificial evidence, more particularly when there was no quarrel or no verbal dispute amongst them at the relevant point of time. (3) Even if, it is believed that incident had taken place as alleged, it is articulated story since the story of caught holding the victim in typical manner is an artificial evidence, more particularly when there was no quarrel or no verbal dispute amongst them at the relevant point of time. (4) Even if incident is believed to have occurred as alleged, it was not pre - planned incident, but it was a sudden and accidental result of some dispute, if at all there is a dispute. Practically there cannot be a disturbance at least between accused Nos. 1, 2 and 5 since they are in service and they have nothing to say about garas with the victim." 7.1 In light of above submissions, if we peruse the available record and proceedings, it becomes clear that though there is death of one human being as stated herein above, the oral evidence on record is not so reliable to believe that the incident has happened as alleged in the charge-sheet, though, some of the witnesses are supporting the prosecution case. 8. However, before concluding or determining anything, it would be appropriate to scrutinize the available evidence on record: 8.1 PW No. 1 Jigneshbhai Amrutbhai Nayak, Medical Officer, Kumarkhan at exhibit 24, who has performed post mortem note at exhibit 25, confirms that the death of the victim was resulted at about 7:00 p.m. on 03.10.2003. Whereas as per FIR, incident has taken place at about 10:00 p.m. on the same day and, therefore, death must be after 10:00 p.m. Though difference of couple of hours may be argued to be ignored, the fact remains that when there is other corroborating evidence then it would certainly create a doubt that in fact, death of the victim has happened at some other place and, thereafter, dead body was placed with the allegations that accused had stabbed him since other eyewitnesses are not trustworthy. Doctor has also failed to disclose the starting and end of the wound so also position and size of the wound Whereas during cross - examination, doctor has specifically admitted that death of the victim must have taken place at about 7:00 p.m. in the evening and injuries are such that a victim may die within 20 to 30 minutes, whereas incident is alleged to have been taken place at 10:00 p.m. Therefore, it is surprising that how a person died three hours before sustaining the injuries. Therefore, if we believe the deposition of the doctor then injury must have been received between 6:00 to 6:30 p.m. and not at 10:00 p.m. as alleged in the charge - sheet. Doctor has also confirmed that the victim has died because of internal bleeding. This is also raising doubt that probably injury has been received by the victim due to some other reason, since if at all he was stabbed with the knife, there would be extensive outer bleedings also. Therefore, evidence of the doctor is practically creating doubt about the story of the prosecution. 8.2 PW No. 2 Chhaganbhai Gandabhai at exhibit 38 is panch witness of inquest panchnama. He is supporting the investigation. Death of a victim is not at dispute and, however, there is nothing against accused either in the inquest panchnama or in such deposition to prove that they have committed such offence. 8.3 PW No. 3 is Kalubhai Ishwarbhai at exhibit 40 panch witness of place of incident. However, he categorically denies the prosecution case and did not support the investigation. On the contrary he categorically discloses that he was called by the police at Kumarkhan Bus Stand and his signature was taken on ready made panchnama and that only police personnel were present at the place and he has signed the panchnama only because police has asked him to sign. He narrated similar story for the panchnama of the physical arrest of the accused from the panchayat office. 8.4 Similar is the situation with the second panch being PW No. 4 Shaileshkumar Chamanlal at exhibit 46, who also categorically denies the story of prosecution and did not support the investigation and therefore prosecution has failed to prove the arrest of the accused as per investigation, so also the place of incident. 8.5 Similarly PW Nos. 8.4 Similar is the situation with the second panch being PW No. 4 Shaileshkumar Chamanlal at exhibit 46, who also categorically denies the story of prosecution and did not support the investigation and therefore prosecution has failed to prove the arrest of the accused as per investigation, so also the place of incident. 8.5 Similarly PW Nos. 5 Tribhovandas Dahyabhai at exhibit 47 and 6 Hareshbhai Kalubhai Mistri at exhibit 49 are panch witnesses of panchnama of the clothes of the accused. They do not support the investigation and, therefore, prosecution has failed to prove the arrest because as per investigation so also place of incident. 8.6 Similarly PW Nos. 7 Devsibhai Popatbhat at exhibit 51 and 8 Jerambhai Sukhlal at exhibit 55 are panch witnesses of recovery panchnama. These two witnesses have also denied the prosecution story regarding recovery of mudamal weapon. 8.7 PW Nos. 9 Navinbhai Kushavlal Panchal at exhibit 58, 10 Jerambhai Fuljibhai at exhibit 59 and 11 Gandabhai Cheharbhai at exhibit 60 are panch witnesses of arrest panchnama of rest of the accused. They do not support the investigation and, therefore, prosecution has failed to prove the arrest, as alleged. 8.8 Thus, PW Nos. 2 to 11 are declared hostile and they do not support the case of prosecution. 8.9 Whereas PW No. 12 at exhibit 64 is Devabhai Bijalbhai Parmar at exhibit 64. Though he is stating in favour of the prosecution case, so as to book the accused, a careful reading of entire deposition makes it clear that witness has not shouted for help till death of the victim, he has not disclosed the place of incident for a long time and he has not tried to intervene or to save the victim, if at all, he is eyewitness as claimed by him. In addition to such non - activity by the witness, witness has failed to prove any motive of incident or attack, since there is no evidence to that effect and conduct of the witness seems to be doubtful. More so because FIR was forwarded to the Magistrate Court at belated stage. In addition to such non - activity by the witness, witness has failed to prove any motive of incident or attack, since there is no evidence to that effect and conduct of the witness seems to be doubtful. More so because FIR was forwarded to the Magistrate Court at belated stage. Since witness seems to be interested or committed to support the prosecution, he has deposed in verbatim about the prosecution case and, therefore, it seems that he is tutor witness and, therefore, practically his cross - examination alone is material wherein he has no option but to admit that; police had come 5 to 6 hrs. after the alleged incident, he remain seated at the place of incident without any activity, panchnama was recorded at 3:00 a.m., police has not recorded anything in his presence, victim died within 5 minutes of the attack. Thereby incident took place at 10:00 p.m. whereas doctor has opined that victim died at about 7:00 p.m. considering the viscera samples taken from the dead body, witness has disclosed that he became unconscious after some time because of death of the victim. In that case, he would not be able to notice everything as deposed by him so perfectly, he has not disclosed the names of the people who gathered there, other witness Dipakbhai, who has informed the police, has not bothered to check the position of the victim but conveyed the police that murder has taken place, neither this witness nor Dipakbhai has disclosed before the police that who is killed or the names of the accused. - Most important admission is to the effect that though witness has claimed to be eyewitness, he confirmed that he heard shouting of the victim and when he reached to the place he has not seen any weapon in the hands of any of the accused, and that Victim has not opposed or defended himself. 8.10 Though FIR was registered at 2:00 a.m. on 04.10.2003, the Investigating Agency has forwarded it to the Court of JMFC only at 8:30 p.m. on 05.10.2003 i.e. approximately after 43 hrs. as against settled legal position that FIR must be forwarded to the concerned Court within 24 hrs. This goes to show that FIR was kept blank and open for more than 24 hrs. as against settled legal position that FIR must be forwarded to the concerned Court within 24 hrs. This goes to show that FIR was kept blank and open for more than 24 hrs. so as to add the names of the appellants - accused probably because either there was no evidence or knowledge to the family of the victim that how victim has died or they wants to confirm the names of such person from whom they got some benefit. This is a serious lacuna on the part of the investigation and if after such lacuna, some of the witnesses are stereo-type then there is substance in the submission by the accused that they are being falsely implicated in the case, whereas other evidence shows that even prosecution has tried to hide facts of one other incident, which required in to presumption that victim was injured in such other incident but prosecution does not want to disclose or refer it. 8.11 PW No. 13 at exhibit 66 is Dipakbhai Kanjibhai Parmar. Though he has not disclosed names of the accused to the police now he is coming forward with the say that he has seen the accused going from the place of incident, but he is not eye witness and he has not said that he has seen the incident and thereby he has not seen the accused stabbing the victim as alleged. However, in cross - examination, he admits that he was at the place of incident when police had come however, he has not conveyed anything to the police about the incident and that he was not knowing that what shouting was going on at the relevant time. He further admits that details of incident was conveyed to him by his uncle - Devabhai, who is PW No. 12 and complainant, only after he returned back by making telephone call to the police, but he has not disclosed such fact in his statement before the police. Thereby practically he is neither the eyewitness nor the material witness and whatever he says is only hearsay from the previous witness and, therefore, except informing the police, he does not have any knowledge about the incident. Thereby practically he is neither the eyewitness nor the material witness and whatever he says is only hearsay from the previous witness and, therefore, except informing the police, he does not have any knowledge about the incident. Surprisingly when all other witnesses have admitted the factual details, this witness has deposed that he is not aware about the dispute between Chandresh @ Dashrath, who has filed a complaint against the victim and his brother Narayanbhai and that victim had quarrel with one Pankaj, wherein members of both the parties have been injured. In short, deposition of such witness does not inspire any confidence. 8.12 PW No. 14 Ajaysinh Hardayalsinh Rajput is a PSI, Detroj on duty. At the relevant time, he was on patrolling because of Navratri Mahotsav and when he got an information from the PSO about the incident, he reached to the place. It is his case that he has started investigating the incident by recording panchnamas and sending dead body for post mortem and to keep law and order position, he selected to remain in village by overnight sending the dead body with other police people. Now when concerned eyewitness has deposed that panchnama was drawn between 3:00 a.m. to 4:00 a.m. being PSI knowing fully well that panchnama must be drawn during day hours, deposed that it was drawn between 7:00 a.m. and 8:00 a.m. Therefore, there is material contradiction in the deposition of Investigating Officer and so called eyewitness and, therefore, both of them are not reliable so far as investigation is concerned. Such fact is corroborated by Panch Witness when they deposed that signature on ready made panchnama was obtained by the police. It is also admitted by the Investigating Officer that he found accused No. 1 at his house in the morning and he was arrested. By all means it is to be realized and, therefore presumed that based upon overall circumstances on record that if, there are two eyewitnesses, who have seen accused murdering the victim, the accused would never be found at home, if they have murdered the victim, they will certainly try to abscond, which goes to show that there is substance in the defense that entire investigation is articulated to see that real culprits may not be identified and some other persons are booked and convicted for such a grievous offence. Similar is the situation for the remaining accused when they were arrested within couple of days from their houses. Being police officer, the witness has practically narrated his story as per the prosecution case and, therefore, what is relevant is in fact, his cross - examination, wherein there is contradiction with the say of the witness, in as much as, though witness Dipakbhai himself has disclosed such position that when police has reached at the place and that his statement was recorded only after a day or so i.e. not on the same day and place of incident, the Investigating Officer categorically states that they have inquired about the incident from Dipakbhai who was present at the place of incident and that Investigating Officer admits that though it is necessary for him to record about such conversation in his police diary, he has not recorded anything about his conversation with such so called eyewitness Dipakbhai. When realizing his misdeeds, the Investigating Officer has tried to defend himself by saying that statement of Dipakbhai was not recorded at that time because FIR was not lodged but the fact remains that FIR was sent to the Magistrate Court only after 43 hours and, therefore, Investigating Officer and relatives of the victim have articulated the incident and, therefore, there is no paper work at the relevant time. Now another important and material disclosure by Investigating Officer is on record, wherein he admits that when he inquired about the incident from Dipakbhai, names of the accused were not disclosed by Dipakbhai. When he admits that he has inquired with Dipakbhai at least for 5 to 10 minutes and that he admits that he did not get any clue or worthy information about the incident from Dipakbhai during these 5 to 10 minutes, he did not arrest that since Dipak bhai has not disclosed the name of the accused person as desired by the family of the victim or investigating agency, his statement was not recorded immediately, though he was known to be an informant. It is also equally important that if information of incident to the police is given by Dipakbhai, then there must be a proper disclosure and he should be first informant of the incident. It is also equally important that if information of incident to the police is given by Dipakbhai, then there must be a proper disclosure and he should be first informant of the incident. In view of such background when FIR is forwarded beyond the prescribed period of time limit, there is a reason to believe that details of complaint has been managed after discussing the issue amongst investigating agency and family members of the victim and after deciding that, who are to be booked in such offence, FIR was forwarded to the Court. This witness has been cross - examined at length. However, I am recalling only relevant part of cross - examination to decide this appeal otherwise overall reading of the evidence clearly give an impression that there is not only lacuna in the investigation and charge - sheet against persons who are serving in Army but there is selectiveness, probably with a view to see that they may lose their service benefits and to save such situation they may succumb to the demands of the family of the victim. When family members of the victim including his uncle and complainant have denied the fact of dispute with Chandresh @ Dashrath but this Investigating Officer has no option but to admit that Chandresh @ Dashrath has lodged a complaint against Ghelabhai Revabhai and Narayanbhai Revabhia under Sections 324, 325, 114 etc of the Indian Penal Code being I - C.R. No. 51 of 2003 with Viramgam (Rural) Police Station wherein Chandresh and Pankaj were injured and they were sent to the hospital for treatment with police yadi. However he was not ready to disclose injuries received by them under the pretext that he cannot depose without looking at the record of that case. However, he admits that he has prayed for summary trial of such case in absence of medical evidence regarding injuries, but he admits that he has not managed to get the injury certificate from the concerned hospital. However, he admits that he has prayed for summary trial of such case in absence of medical evidence regarding injuries, but he admits that he has not managed to get the injury certificate from the concerned hospital. On specific question he has no option but to admit that he asked for summary because of endorsement by the police that injured has not reached to the hospital for treatment, in as much as he is not aware about the injuries and he cannot depose without case papers whereas in second breath, he admits that he has asked for summary for want of injury certificate relying upon the endorsement of the police. However he fails to realize that if victim has not reached to the hospital then Investigating Officer has to disclose that whether doctor has endorsed such fact and that why police has not accompanied the injured victim to the hospital, and failed to record their statement. At this stage the stand by the Sessions Court regarding non - granting of time to the witness to call for such record is not correct because advocate for the accused had not asked for time since accused was in police custody so as to allow the Investigating Officer to fill up his lacuna on next date. However, ultimately Sessions Court has to adjourn the further cross - examination so as to enable the Investigating Officer to come with the relevant information. During further cross - examination when Investigating Officer had come with the station diary, proper scrutiny of such cross - examination makes it clear that station diary is not maintained in proper manner and on internal page 22 of such cross - examination the witness has no option but to admit that there is lacuna in the investigation because there is a reference of presence of chili powder on the body of the victim but there was no reference of such chili powder in police papers and he has not seized the clothes of the victim to verify that how and why chili powder has been used. On the contrary he admits during his cross - examination that during investigation it has not come on record that accused has used chili powder. Though he denies that to articulate the offence as alleged, he has changed the details in FIR of this incident and FIR by Chandresh referred herein above. On the contrary he admits during his cross - examination that during investigation it has not come on record that accused has used chili powder. Though he denies that to articulate the offence as alleged, he has changed the details in FIR of this incident and FIR by Chandresh referred herein above. There is substance in the submission that there is every possibility of merging the facts of such other incident by the Investigating Officer so as to harass and disturb the present accused. It is suggested by the accused that no admission by the Investigating Officer that in fact instances of this FIR being I - C.R. No. 50 of 2003 and 51 of 2003 wherein Chandresh was injured were happened at the same time and on same day at some other place from the place shown in this FIR but after some time when it was found that injured in such FIR has died, places of both the complaints are changed and though Chandresh and Pankaj were injured, they have been advised not to go to the hospital and selectively summary report was filed in the FIR so that both the incidents can shown at different places in FIR. Most surprising fact is an admission by the Investigating Officer that even till the time of filing of charge sheet he has never recorded the statement of one Arjunshinh who confirms that accused No. 5 was with him at the relevant time on his duty and Investigating Officer has never bothered to inquire at the place of service of any accused that whether they were available at the place of their service, even if person is on leave and at home, his presence can be confirmed by other appropriate evidence which Investigating Officer has failed to verify. 9. 9. The accused were able to file on record the copy of FIR being C.R. No. 51 of 2003 lodged by Chandresh against Ghelabhai and Narayanbhai, wherein complainant Chandresh has categorically disclosed that he received a fracture in an incident with Ghelabhai and Narayanbhai because brother of the complainant namely Jayanti has some illicit relations with the sister of these two people and, therefore, they all had attacked them with dharia and stick and chili powder and when chili powder went into the eyes of the complainant, accused have beaten them with knife, which resulted into fracture to the complainant and grievous injuries to other victims. If this is the FIR, then it cannot be believed that person with fracture has not gone to the hospital for getting treatment. Even summary report is now on record, wherein it is disclosed that investigating agency is unable to get certificate from hospital, since victim has not gone to the hospital for the treatment. In that case, investigating agency must initiate appropriate proceedings against such complainant, for filing false complaint. 10. Thereby, sum and substance of entire evidence of Investigating Officer makes it clear that he is not reliable and his activity is not beyond reasonable doubt and it cannot be believed that offence has been committed by the accused and accused alone. Thereby, if accused was able to create a doubt in the prosecution evidence then irrespective of stereo type deposition of three witnesses, the benefit of doubt is certainly required to be extended in favour of the accused. 11. As against scrutiny of evidence on record, if we peruse the impugned judgment unfortunately the trial Court has been guided by the prosecution story, which is based upon the preponderance of probability, as against the settled legal position that in all criminal cases, the complainant and investigating agency has to prove their case beyond reasonable doubt and if there is no such evidence, then acquittal can be confirmed by extending benefit of doubt as established in the criminal jurisprudence though catena of judgments by the Honourable Supreme Court, since liberty of a person cannot be jeopardized in absence of cogent, reliable, undisputed and corroborating evidence without reasonable doubt. It is crystal clear from the record that there are material contradictions and lacuna in the prosecution evidence even if eyewitness have stated in clear terms about' the incident and in support of the FIR, when entire FIR is not trustworthy, evidence of prosecution case cannot be relied upon. when it seems to be articulated, may be with an intention to save somebody or may with an intention to harass the present appellants since they are in service, so as to see that either they lose their service benefits or they succumb to the demands of the family of the victim and investigating agency. 12. In support of their defence, appellants are relying upon the following decisions: "(1) Bhagwan Bux Singh v. State of Uttar Pradesh reported in AIR 1978 SC 34 and (2) State of U.P. v. Mohammad Musheer Khan reported in AIR 1977 SC 2226 , wherein it is held that conviction under Section302 read with Section 34 of the Indian Penal Code could not be sustained, when there is no evidence to show that accused caught hold the hands of the deceased for the purpose of helping the other person in assaulting the deceased. This is a very short judgment which is almost similar to the present case wherein the Honourable Supreme Court has confirmed the conviction of the person who has given fatal blow but acquitted other person, who caught hold of hands of the victim. However, in the present case benefit of doubt needs to be extended to all the accused because of contradictions and lacuna in evidence as disclosed herein above. (3) Shaikh Nabab Shaikh Babu Musalman and others v. State of Maharashtra reported in AIR 1993 SC 169 , wherein, the Honourable Supreme Court has set aside the conviction, when eyewitnesses are highly interested and not coming out with true version and not attributing any overt act to co - accused considering that there is likelihood of them being falsely implicated. Thereby this judgment confirms that except conviction of accused No. 2, conviction of other accused is certainly unwarranted." 13. Thereby this judgment confirms that except conviction of accused No. 2, conviction of other accused is certainly unwarranted." 13. Though I have come to the conclusion that benefit of doubt is to be extended to all the accused as discussed herein-above, possibility of confirmation of conviction of accused No. 2 on technical ground because, now he has completed his sentence and there is an evidence that knife blow was given by him, learned advocate for the accused No. 2 has submitted to extend the benefit of probation under the Probation of Offenders' Act. For the purpose, report of Probation Officer was called for as per order dated 28.07.2015. Now we are in receipt of report by Probation Officer under the Probation of Offenders' Act, which is in sealed cover. Such report is opened and taken on record. Perusal of such report dated 20.08.2015 and 24.08.2015, makes it clear that after being released from the jail after completing 10 years of conviction, accused No. 2 is doing labor work for livelihood of his family and Probation Officer has specifically confirmed with reference to all the accused that they are not involved in any other illegal activities and they are living peacefully and they are law abiding citizens and accused No. 2 is serving in Private security company since his service benefits have been discontinued. In short, report of Probation Officer is positive in favour of the accused and, therefore, learned advocate for the appellants have also submitted to extend such benefit to them. For the purpose the are relying upon the decision in case of (1) State of Karnataka v. Muddappa reported in 1999 (5) SCC 732 and (2) Eliamma v. State of Karnataka reported in 2009 (11) SCC 42 , wherein the Honourable the Supreme Court has held that benefit of probation can be extended to the appellants even in grievous charges, if the Court considers it deem fit. 14. In view of such facts, circumstance and discussion herein above, the appeal is allowed. Thereby, impugned judgment and order is quashed and set aside by quashing and setting aside the conviction of all the accused. Bail Bond of appellant Nos. 1 and 3 5 shall stand cancelled. Fine, if any, paid by the appellants shall be refunded to them. R & P be sent back to the concerned trial Court forthwith.