JUDGMENT : 1. The appellant has chosen not to appear despite enjoying the privilege of bail. The appeal is of the year 1994 for an occurrence which took place in the year 1992. I do not consider it prudent to adjourn the matter further and take it up for consideration with the assistance of the State counsel in view of Surya Baksh Singh vs. State of Uttar Pradesh, (2014) 14 SCC 222 and the guidelines laid down therein with regard to the manner in which such appeals can be taken up for consideration by the court without even appointing amicus curiae even exercising powers under section 482 Cr.P.C. 2. This criminal appeal has arisen out of judgment dated 7.2.1994 passed by learned Additional Sessions Judge, Malpura (Tonk), in Sessions Case No.37/93 (71/93), whereby appellant has been convicted and sentenced as follows : u/s 341 IPC One month's Simple Imprisonment with fine of Rs.500/-; in default of payment thereof, to further undergo 15 days' Simple Imprisonment. U/s 324 IPC Nine months' Simple Imprisonment with fine of Rs.900/-, in default of payment thereof, to further undergo two months' Simple Imprisonment. It was further ordered that Rs.400/- out of fine of Rs.1400/- to be paid to Om Prakash for expenses of injuries. All the sentences were ordered to run concurrently. 3. Brief facts giving rise to the appeal are that Om Prakash Soni (PW-1) submitted on 11.9.1992 a written report (Ex.P-1) before SHO, Police Station Diggi, alleging inter alia that on 8.9.1992 at about 10-11 PM, complainant, after closing his shop in Malpura, was coming to his house at Diggi by motorcycle. Ashok Kumar was riding as pillion. As soon as he reached near Bandanwara Dharmshala, appellant Kailash Nath Jogi stopped him. He was holding an axe. Immediately thereafter Kishan, Rameshwar and Manmohan along with three more persons holding sticks and Farshia appeared there and assaulted on complainant by sticks, axe and other weapons. Kailash gave an assault by axe with intention to murder him on his head and also snatched away a golden chain wearing on his neck. Ashok Kumar tried to intervene whereupon he was also given beating. Thereafter, assailant left them assuming to be dead. Babu Lal, Satyanarain and Ashok Kumar saw the whole incident. They took him at his home. Kailash gave an assault by axe with intention to murder him on his head and also snatched away a golden chain wearing on his neck. Ashok Kumar tried to intervene whereupon he was also given beating. Thereafter, assailant left them assuming to be dead. Babu Lal, Satyanarain and Ashok Kumar saw the whole incident. They took him at his home. The assailants had given threat to the complainant and his father that they would kill them if they approach police. Thereafter, the complainant could not come to report. Medical report of the complainant is enclosed. On the basis of this complaint, police registered a formal FIR No.106/1992. Place of occurrence was inspected. Statements of witnesses were recorded. Appellant and three others – Rameshwar, Kishan and Radheyshyam were arrested. At the instance of appellant Kailash, an axe alleged to be used in committing crime was recovered. Medical reports of both – Om Prakash and Ashok Kumar were collected. After due investigation, chargesheet against appellant and three other persons – Rameshwar, Radheyshyam and Kishan was filed before CJM, Tonk. 4. On commitment, learned trial court framed charges for the offences u/s 307/34, 324, 324/34, 323, 323/34, 341 and 341/34 IPC. All the accused denied the charges and claimed for trial. Prosecution examined ten witnesses and exhibited nine documents. Statements of accused were recorded u/s 313 Cr.P.C. All the accused stated the prosecution evidence to be wrong and false. Appellant Kailash further stated that he has been falsely implicated in collusion with Babu Lal, contractor. In defence, two documents were exhibited. After hearing both the parties, learned trial court vide judgment impugned acquitted Radheyshyam, Kishan and Rameshwar from all the charges and convicted and sentenced the appellant Kailash as stated hereinabove. 5. According to the memo of appeal, the appeal has been preferred on the ground that learned trial court has committed illegality in giving finding that allegations against the accused appellant of beating Om Prakash by axe are proved beyond doubt. Learned trial court has erred in not appreciating the injury reports and the depositions made by prosecution witnesses and the defence witnesses; particularly, Ravi Kumar Jain (DW-1) and Dr. Rakesh Jain (PW-10) who falsify the whole case of the prosecution. 6. Learned trial court has erred in not appreciating the injury reports and the depositions made by prosecution witnesses and the defence witnesses; particularly, Ravi Kumar Jain (DW-1) and Dr. Rakesh Jain (PW-10) who falsify the whole case of the prosecution. 6. It has also been averred in memo of appeal that learned trial court has seriously erred in not appreciating that the whole FIR and the injury reports stand disproved from depositions made by the defence witnesses and also by the contradictions brought out in the cross examination and examination in chief of the prosecution witnesses. 7. Learned trial court has further seriously erred in not tending the benefit of probation to the appellant. Learned trial court has also erred in not disbelieving the prosecution story regarding discovery of axe at the instance of the accused, whereas the whole evidence in this regard does not inspire for such inference. 8. Per contra, learned Public Prosecutor submits that the delay in lodging FIR has appropriately been explained. Eye witnesses have corroborated the prosecution story which is further supported by medical evidence. There is no material on record to disbelieve the truthfulness of the prosecution story. Learned trial court has rightly convicted and sentenced the appellant. 9. I have gone through the whole material available on record and considered the submissions made by learned Public Prosecutor. 10. Learned trial court has observed that explanation submitted by prosecution with regard to delay in lodging the FIR, is not satisfactory qua other accused persons - Rameshwar, Radheyshyam and Kishan. Since at the instance of appellant Kailash an axe was recovered by police, the delay in lodging FIR is not fatal for prosecution qua the appellant Kailash. 11. Learned trial court has accepted arguments of the defence that the incident is of village Diggi, where hospitals are there. But neither any treatment was taken there nor any medical examination was conducted there. Medical report was prepared in Malpura hospital and complaint was prepared by the complainant through advocate Ravi Kumar Jain. Dr. Rakesh Jain who is brother of Advocate Ravi Kumar Jain, conducted the medical examination. All these facts create suspicion with regard to commit the offence charged with qua co-accused Rameshwar, Radheyshyam and Kishan. Medical report was prepared in Malpura hospital and complaint was prepared by the complainant through advocate Ravi Kumar Jain. Dr. Rakesh Jain who is brother of Advocate Ravi Kumar Jain, conducted the medical examination. All these facts create suspicion with regard to commit the offence charged with qua co-accused Rameshwar, Radheyshyam and Kishan. However, learned trial court has observed that the said facts are important but since an axe has been recovered at the instance of the appellant Kailash, he cannot be given benefit of this lacuna. 12. Learned trial court has observed that as per prosecution story, there was big gathering in the village on the day of incident of about 50,000 – 60,000 people to celebrate a ceremony and even during late night, shops were opened but none of nearby shopkeepers has been made witness by the prosecution. Only Babu Lal, contractor, with whom appellant has enmity and Satyanarain and Ashok who are servants of the complainant have been made witnesses. However, since an axe has been recovered at the instance of the appellant Kailash, he cannot be extended any benefit of this lacuna, whereas no weapon has been recovered at the instance of other co-accused, therefore, other co-accused are entitled to benefit of doubt on the basis of this lacuna. 13. Learned trial court has found that Om Prakash (PW-1), complainant has stated many new things before the court which were not stated by him before police during investigation or mentioned in the complaint made by him. Learned trial court has also disbelieved the testimony of Ashok Kumar, alleged to be an eye witness. Learned trial court has also found substantial contradictions in the evidence rendered by the witnesses of the prosecution. Despite of all these fallacies, learned trial court has given finding that co-accused can be given benefit of doubt but so far as appellant Kailash is concerned, he cannot be given such benefit because one axe has been recovered at his instance. 14. As per recovery and seizure memo of axe (Ex.P-6) in the presence of two witnesses – Gopi @ Gopal and Ramswaroop, Investigating Officer recovered an axe at the instance of appellant Kailash from his house lying under cot. Prosecution has examined Ramswaroop as PW-5. He has turned hostile and does not corroborate prosecution story. Other attesting witness Gopi has not been examined by prosecution. Prosecution has examined Ramswaroop as PW-5. He has turned hostile and does not corroborate prosecution story. Other attesting witness Gopi has not been examined by prosecution. Investigating Officer – Rajenda Pareek (PW-8) has rendered evidence in support of the recovery. Learned trial court has observed that since Investigating Officer - Rajendra Pareek has no enmity with the appellant Kailash, the evidence rendered by him can be believed. Non-examination of an attesting witness or becoming hostile of other attesting witness, have no bearance on prosecution story. It is pertinent to mention here that as per seizure memo of axe (Ex.P-6), there was no blood stain found on the recovered axe. The recovered axe was not sealed on the spot. Investigating Officer did not forward the seized axe for any scientific examination. 15. It is quite strength that learned trial court accepts certain substantial lacunae in the prosecution story and on the basis whereof has extended the benefit of doubt to the co-accused. But only for recovery of axe, the same benefit was not extended to the appellant Kailash. As mentioned hereinabove, the recovery of axe at the instance of the accused is also not found proved from the evidence of attesting witnesses. The recovered axe has not been subjected to any scientific examination. Therefore, the recovered axe cannot be held connected in any manner with the crime. 16. There cannot be different yardsticks for assessing culpability of individual accused in the same case. The lacunae found in prosecution story have rightly been pointed out by learned trial court. But on the basis of such lacunae, learned trial court has discriminately acquitted other co-accused and convicted the appellant. 17. In my view, the benefit of doubt extended to other co-accused is also available to the present appellant. Hence, the appeal is allowed. The judgment impugned dated 7.2.1994 passed by learned Additional Sessons Judge, Malpura (Tonk) regarding conviction and sentence against the appellant is set aside. The appellant is acquitted of all the charges levelled against him. 18. 17. In my view, the benefit of doubt extended to other co-accused is also available to the present appellant. Hence, the appeal is allowed. The judgment impugned dated 7.2.1994 passed by learned Additional Sessons Judge, Malpura (Tonk) regarding conviction and sentence against the appellant is set aside. The appellant is acquitted of all the charges levelled against him. 18. Keeping in view, however, the provisions of section 437-A of the Code of Criminal Procedure, accused appellant Kailash S/o Shri Laxman Nath is directed to forthwith furnish a person bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.