JUDGMENT : G.B. Shah, J. 1. Present appeal assails the judgment and order dated 27-04-2012, passed by the learned Sessions Judge, Bhavnagar, in Sessions Case No. 130 of 2009, whereby, the appellants herein-original accused came to be convicted for the offence punishable under Sections 307 r/w. 114 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and Section 135 of the Bombay Police Act and for the offence punishable under Section 307 r/w. 114 of the IPC, they were sentenced to undergo rigorous imprisonment (RI) for five years and fine of Rs. 2,000/- each and in default of payment of fine, to undergo, further RI for six months, whereas, for the offence punishable under Section 135 of the Bombay Police Act, to undergo RI for one month and a fine of Rs. 500/- each and in default of payment of fine, to undergo, further RI for fifteen days. The sentences were to run concurrently with benefit of set off. 2. Filtering the unnecessary details, the facts of the prosecution case are that on 03/04/2009 at about 21:00 hours at village: Lakhanka near school, the appellants herein - original accused allegedly, keeping grudge of injured Dharamshibhai Baraiya having affair with the daughter of appellant No. 2 herein - original accused No. 2 - Ghusabhai Chhaganbhai Gohil, in aid and abetment of each other, assaulted the injured with a view to commit murder, with sword, scythe and axe and caused severe injuries on his head and hands and thereby, committed the offence punishable under Sections 307 r/w. 114 of the IPC and Section 135 of the Bombay Police Act for which a complaint came to be lodged against them. For the sake of convenience, the parties herein are, hereinafter, referred to as per their original status. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court. The trial Court framed charge against the accused, which was read over to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:- ORAL EVIDENCE S. No. Name of Witness Exhibit 1. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:- ORAL EVIDENCE S. No. Name of Witness Exhibit 1. PW-1 Ramilaben Savjibhai Baraiya, complainant 14 2. PW-2 Sadubhai Harjibhai Baraiya 17 3. PW-3 Lavjibhai Kanabhai 18 4. PW-4 Dharamshibhai Harjibhai, injured 19 5. PW-5 Dr. Brijeshbhai Narendrabhai Sisodiya 20 6. PW-6 Dr. Naimeshbhai Chimanlal Patel 23 7. PW-7 Dr. Tejasbhai Shashikantbhai Doshi 25 8. PW-8 Mohammadbhai Adambhai, Panch 35 9. PW-9 Salimbhai Ishabhai, Panch 38 10. PW-10 Hetubhai Jilubha Vaghela, PSO 41 11. PW-11 Lakhubha Polubha Chudasama, IO 43 DOCUMENTARY EVIDENCE S. No. Document Exhibit 1. Complaint 15 2. Certificate of the injured of Sir T. Gen Hospital 21 3. Medical Certificate of the injured 22 4. Medical Certificate of the injured 24 5. Certificate of the injured of Dr. Dijesh Shah 26 6. Certificate of the injured of Meru Nursing Home 27 7. Yadi as to registering the offence 28 8. Order as to assigning investigation 29 9. Yadi of PSO as to recording DD 30 10. Letter to Executive Magistrate for recording DD 31 11. Panchnama of medical sample of the accused 32 12. Panchnama of blood sample of the injured 33 13. Discovery Panchnama 36 14. Seizure Panchnama of clothes put on by the injured 37 15. Arrest Panchnama 39 16. Panchnama of place of offence 40 17. Muddamal Despatch Note 44 18. Receipt of FSL 45 19. Notification as to prohibition of use of weapons 46 2.2 At the end of the trial, after recording the Further Statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid, by the impugned judgment and order, giving rise to prefer the present appeal. 3. Heard Mr. Sunil C. Patel, the learned advocate for the appellants-original accused and Mr. K.L. Pandya, the learned Additional Public Prosecutor for the respondent-State. 3.1 It is reported that out of the appellants - original accused, appellant No. 2 - original accused No. 2 - Ghusabhai Chhaganbhai has undergone the sentence and accordingly, he was released on 22/03/2016. 3. Heard Mr. Sunil C. Patel, the learned advocate for the appellants-original accused and Mr. K.L. Pandya, the learned Additional Public Prosecutor for the respondent-State. 3.1 It is reported that out of the appellants - original accused, appellant No. 2 - original accused No. 2 - Ghusabhai Chhaganbhai has undergone the sentence and accordingly, he was released on 22/03/2016. So far as appellant No. 1 - original accused No. 1 - Lakhmanbhai Tejabhai is concerned, he has undergone 11 months and 10 days and he is on bail, whereas, appellant No. 3 - original accused No. 3 - Mohanbhai Chhaganbhai has undergone 10 months and 9 days and he is also on bail. Thus, the present appeal, as such, has been argued qua appellant Nos. 1 and 3 - original accused Nos. 1 and 3. 3.2 Mr. Patel, the learned advocate for the accused, submitted that the trial Court has committed a grave error in convicting the accused; the impugned judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the accused. He took this Court through the oral as well as the entire documentary evidence on record and submitted that there are serious contradictions in the evidence led by the prosecution. He drawing attention to the evidence of PW-1 Ramilaben Savjibhai Baraiya, Exh.14 and injured Dharamshibhai Harjibhai, Exh.19 submitted that the learned trial Judge has given undue weightage to the evidence of these witnesses and has failed to consider the aspect that they are the interested witnesses, besides many contradictions in their depositions. Moreover, as per the case of the prosecution PW-3 Lavjibhai Kanabhai, Exh.18 was present and eye-witness to the incident in question, however, the said witness has not supported the case of the prosecution and declared as hostile. Moreover, though PW-1 Ramilaben Savjibhai Baraiya at Exh.14, was stated to be the eyewitness, however, considering her deposition, it is revealed that she had reached to the scene of offence afterwards and therefore, her deposition should not be considered being not trustworthy. Moreover, though PW-1 Ramilaben Savjibhai Baraiya at Exh.14, was stated to be the eyewitness, however, considering her deposition, it is revealed that she had reached to the scene of offence afterwards and therefore, her deposition should not be considered being not trustworthy. Moreover, it is submitted that incident in question had occurred in the night hours and there was no proper lighting and in the circumstance, it was very difficult to identify anybody clearly. He submitted that it is also an admitted fact that the role played by each accused is not properly established because the Investigating Officer has not conducted the Test Identification Parade (TI Parade) and this issue, has not been properly appreciated by the learned trial Judge and on that count also, the conviction deserves to be upturned. The learned advocate for the accused further submitted that the scene of offence was a public place, surrounded by residences and the prosecution could have examined the independent witnesses but is not the case. 3.3 The learned advocate for the accused further submitted that it is an admitted position that after the incident, injured along with the complainant had first gone to the Primary Health Centre for medical treatment but they did not disclose the names of the assailants. Moreover, the injured had informed the doctor that a mob of 10 to 15 persons had attacked but no names of the present appellants had been disclosed and it is only at the time of lodging the complaint, their names were disclosed, after taking the treatment and thus, it is clear that with a view to falsely implicate the accused in the crime, their names had been disclosed later on while registering the offence at the instance of the complainant and close relatives of the injured. 3.4 The learned advocate for the accused further submitted that a perusal of the deposition of PW-5 Dr. Brijeshbhai Sisodiya, Exh.20 reveals that in his opinion, the injuries could be caused by a sharp cutting weapon like scythe (dhariya). In his cross-examination, he has admitted that two injuries on the injured can be caused only by one weapon. This issue is not considered by the learned trial Judge in true perspective and on that count also, the impugned judgment and order of conviction deserves to be set aside. In his cross-examination, he has admitted that two injuries on the injured can be caused only by one weapon. This issue is not considered by the learned trial Judge in true perspective and on that count also, the impugned judgment and order of conviction deserves to be set aside. 3.5 The learned advocate for the accused further submitted that it is clearly established from the record that a criminal case relating the video clip was lodged against injured Dharamshibhai, which is pending and with a view to take revenge of the same, the appellants have been wrongly and falsely implicated in the crime in question. Besides, the panchas have also not supported the case of the prosecution. There is inconsistency in the evidence of the prosecution witnesses, which creates doubts in the credibility of their evidence. Moreover, no FSL report qua the muddamal sent for analysis has been forthcoming on record so as to have the expert opinion on record and there is serious lacuna in the investigation and all these aspects, the learned trial Judge has failed to consider and hence, interference at the hands of this Court is highly called for and considering the above, present appeal deserves to be allowed and the accused may be acquitted of all the charges. 3.6 In support, the learned advocate for the accused relied upon following decisions: "3.6.1 Maranadu and Anr. v. State of Inspector of Police, Tamil Nadu, reported in 2009 (1) GLH 7, more particularly, Head Note 'B'. "(B) Criminal Laws - Indian Evidence Act, 1872 - S.3 - Appreciation of Evidence in Criminal Trial - Eye Witnesses - Family members or interested witnesses - Evidence of such witnesses cannot per se be discarded - Foundation has to be laid by Accused, if plea of false implication is made - In such cases, duty of the Court to adopt careful approach and to analyse evidence to find out whether it is cogent and credible." 3.6.2 Chimanbhai Chhaganbhai Gamit and Ors. v. State of Gujarat, reported in 2008 (3) GLH 678 , more particularly, Head Note 'A'; "(A) Criminal Laws - Appreciation of Evidence - Code of Criminal Procedure, 1973 - S. 313, S. 374, S. 386 - Indian Evidence Act, 1872 - S. 3 - Criminal Trial - It is the duty of prosecution to lead the best available evidence and that too at an appropriate stage - In the present case important documents like serological examination report and evidence of FSL that too incomplete were produced by the prosecution at the belated stage of recording further statement under Section 313 of Cr.P.C. - Held, seriously prejudiced the right of accused to raise his defence - Fairness should be there at every stage - Investigation, prosecution & trial should be fair." 3.6.3 Sk. Yusuf v. State of West Bengal, reported in AIR 2011 SC 2283 , more particularly, Head Note 'D'; "(D) Penal Code (45 of 1860), S.300 - Murder - Evidence - Witness - Murder - Circumstantial evidence - Body of victim girl found in graveyard - Evidence of witness that accused was present in close proximity of area where victim had gone to pluck jhinga - None of witness saw accused and victim together - They cannot be said to be 'last seen together' - Spade discovered at instance of accused which was allegedly used for commission of crime not sent for chemical analysis -Absence of any report of Serologist as to presence of human blood on weapon would be fatal to prosecution - Theory of sexual assault on victim not proved by medical evidence -Evidence of alleged extra-judicial confession made by accused also not reliable - Though incident occurred in broad day light in agricultural field surrounded by fields of others nobody had seen victim at alleged place of occurrence or accused digging earth - Circumstances from which conclusion of guilt could be drawn not fully established - Accused entitled to benefit of doubt." 3.6.4 Satguru Singh v. State of Punjab, reported in AIR 1995 SC 2449 , more particularly, Head Note; "Penal Code (45 of 1860), S. 326 - Grievous Hurt - FIR -Grievous hurt - Inordinate delay in lodging FIR - No explanation except plea that efforts for compromise were on by respectables of village and that therefore FIR was not lodged earlier - No respectable from village however, examined in support of such version - No disclosure of name of assailant by injured at very first opportunity - Evidence of eye-witness suffering from some infirmities - Conduct of eyewitness who was brother of injured unnatural in not accompanying injured to hospital - Accused given benefit of doubt and conviction set aside." 3.6.5 Rajendrasinh Bahadursinh Zala, reported in 2003 (2) GLH 362 , more particularly, Head Note 'B': "(B) Indian Evidence Act, 1872 - S. 3 - Appreciation of evidence - Interested witness - Evidence is required to be scrutinized carefully." 4. On the other hand, Mr. Pandya, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. On the other hand, Mr. Pandya, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. He also took this Court to the relevant oral as well as documentary evidence on record and submitted that the prosecution has successfully proved its case against the accused beyond reasonable doubt and all the ingredients of the offence alleged, have been proved and accordingly, there is no question of granting the benefit of doubt to the accused. He submitted that so far as PW-4 Dharamshibhai Harjibhai, exh. 18, is concerned, he himself was injured in the incident in question and has fully supported the case of the prosecution. Moreover, the identification of the accused has also been perfectly established by deposing that three blows had been given, one by Ghusabhai, next by Lakhmanbhai and the third one by Mohanbhai, the accused herein and after Ramilaben, the complainant had reached the spot, they ran away from there and when the ocular evidence is supported by the medical evidence and when it is tallied that the injured had sustained injuries and when the said fact has not been rebutted in the cross-examination of the said injured then, the judgment and order passed by the trial Court should not be interfered with more particularly, when the evidence of the injured is trustworthy. Making above submissions, he requested to dismiss the present appeal as having no merits. 5. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. I have also gone through the decisions relied upon by the learned advocate for the accused. 5. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. I have also gone through the decisions relied upon by the learned advocate for the accused. 5.1 It is not under dispute that after the incident took place on 03/04/2009 at about 9:00 p.m., immediately the injured and all witnesses had gone to Sir T. General Hospital, Bhavnagar and reached there at 11:57 p.m. It is also a fact that during the said period, no complaint was filed. Referring the deposition of Dr. Brijesh Sisodiya at Exh.20, it appears that before the said doctor, the history which was given by injured - Dharamshibhai Harjibhai was to the effect that 15 to 20 persons had assaulted him with scythe (dhariya) and sword near Lakhanka on 03/04/2009. It has also come on record that the patient was conscious at that time and he had reached to the hospital without any police gadi but the fact remains that no names of the accused had been disclosed by the injured. 5.2 Referring to the deposition of PW-1 Ramilaben Savjibhai Baraiya, the complainant at Exh.14, it can easily be carved out that she had not seen as to who had given the blows to the injured. As per her deposition, in para 2, she has deposed that, hearing the shouts of quarrel near her house, she came out hurriedly and saw Ghusabhai and Lakhmanbhai running away. Her nephew Dharamshibhai was sitting there. He had sustained injury on his head. Ghusabhai had caused injury to Dharamshibhai by sword on his head. Further, she has deposed that, she had seen the offence in question. In para 3, she has further deposed that, since she came out, all the three accused ran away with weapons. In her cross-examination, she has admitted that, at the place of incident, there was no facility of lighting and it is true that in the darkness, it is difficult to identify anybody. She has further deposed that, she has no knowledge as to whether against her nephew i.e. Dharamshibhai any offence was registered in the Vartej Police Station but she has admitted that her nephew was sent to jail. She has further deposed that, she has no knowledge as to whether against her nephew i.e. Dharamshibhai any offence was registered in the Vartej Police Station but she has admitted that her nephew was sent to jail. She has also deposed that, the accused (No. 2) Ghusabhai had many a times, persuaded her nephew not to harass her daughter. She has also admitted that, no person, accompanied her to the police station, had been sitting with her in the Police Station when she was being interrogated by the police. Sarpanch Devji Pola was there in the police station, however, the police made him to get out from the police station and when he was out, her statement was recorded. Devji Pola and accused - Lakhman Teja had fought election for Sarpanch against each other. Considering the above deposition of PW-1 Ramilaben, who has tried to be an eyewitness to the incident in question, it appears not trustworthy considering the fact that at the initial stage, in her examination-in-chief, she has deposed that she had shown the accused running away and later, she has deposed that she had witnessed the incident. 5.3 So far as deposition of PW-2 Sadubhai Harjibhai Baraiya, Exh.17 is concerned, admittedly he had not seen the incident in question and there appears much improvement in his deposition. Moreover, in the cross-examination, he has admitted that, after the incident in question had occurred, his cousin brother (uncle's son) had come to wake him up at his home and he had not seen the incident in question. If the complaint at Exh.15, lodged by PW-1 Ramilaben Savjibhai Baraiya and the depositions of complainant at exh. 14 and of injured namely Dharamshibhai Harjibhai (PW-4) at Exh.19 are referred, it has come on record that PW-3 Lavjibhai Kanabhai was there along with injured Dharamshibhai Harjibhai and stated to be the eye-witness to the incident in question, but this witness i.e. Lavjibhai Kanabhai, who is examined as PW-3 at Exh.18, has not supported the case of the prosecution and has been declared hostile. So far as deposition of PW-4 Dharamshibhai Harjibhai at Exh.19 is concerned, he has deposed that, he was sitting outside the school of his village near the pipal tree. Lavjibhai Kanabhai was with him. So far as deposition of PW-4 Dharamshibhai Harjibhai at Exh.19 is concerned, he has deposed that, he was sitting outside the school of his village near the pipal tree. Lavjibhai Kanabhai was with him. At that time, the accused came there possessing with them the scythe, sword and axe and told him that, let's go to your father's field (vadi) and hence, they went together. He was walking ahead of them and at that time, Ghusabhai had inflicted a scythe blow, Lakhmanbhai assaulted with sword on his right hand, whereas, Mohanbhai inflicted axe blow on his left hand. Thus, as per the deposition of the injured, when he was ahead of all the accused, from back, scythe blow had been given and thus, it is very difficult to show that these accused had, in fact, given the blows as stated by him, more particularly, when though after the incident in question, the injured was immediately shifted to Sir T. General Hospital at Bhavnagar and as referred herein above, in the history, no names of the present appellants had been disclosed or given and no complaint was lodged immediately after the incident and the history which was given before Dr. Brijesh Sisodiya (PW-5, Exh.20) is the assault was made by 15 to 20 persons with scythe and sword near Lakhanka. Thus, the deposition of the injured also appears not trustworthy, in absence of any independent witness and more particularly, PW-3 Lavjibhai Kana, who was with him when the alleged incident had occurred, has not supported the case of the prosecution, which creates doubt in the deposition of the injured witness. Besides, it has also come on record that so far as Ghusabhai Chhaganbhai, the accused No. 2 is concerned, earlier he had lodged a complaint against the very injured person, who was harassing his sister. 5.4 So far a deposition of PW-5 Dr. Brijeshbhai Sisodiya, Exh.20 is concerned, as per him, two injuries had been sustained by the injured. In his cross-examination, he has deposed that both the injuries could be caused by the same weapon. So far as PW-6 Dr. Naimeshbhai Chimanbhai Patel, exh. 23 is concerned, as such, he had not given any treatment to the injured. On going through the deposition of PW-7 Dr. Tejasbhai Shashikantbhai Doshi, Exh.25, he has admitted in the cross-examination that Dr. In his cross-examination, he has deposed that both the injuries could be caused by the same weapon. So far as PW-6 Dr. Naimeshbhai Chimanbhai Patel, exh. 23 is concerned, as such, he had not given any treatment to the injured. On going through the deposition of PW-7 Dr. Tejasbhai Shashikantbhai Doshi, Exh.25, he has admitted in the cross-examination that Dr. Dijesh Shah had treated the injured and he had been called with the record of Dr. Dijeshbhai to prove the certificate. 5.5 Moreover, PW-8 Mohammadbhai Adambhai, the panch of the recovery panchnama, who is examined vide Exh.35, has not supported the case of the prosecution and has been declared hostile. Further, so far as other panchnamas i.e. Panchnama of medical sample of the accused dated 06/04/2009 at Exh.32, Panchnama of blood sample of the injured dated 24/04/2009 at Exh.33, Discovery Panchnama dated 06/04/2009 at Exh.36 and the Seizure panchnama of clothes of the injured dated 06/04/2009 at Exh.37 are concerned, in all these panchnamas, Mohammad Adambhai has remained as a panch No. 1 for which, no explanation has been forthcoming on record as to why the said same person has consistently remained as a panch in all the above panchnamas and that also creates doubt in the case put forward by the prosecution. 5.6 Referring to the deposition of PW-11 Lakhubha Polubha Chudasama, the Investigating Officer, Exh.43, it appears that vide Muddamal Despatch Note at Exh.44, the muddamal was sent to the FSL and a receipt had also been issued by the FSL, which is produced at Exh.45, however, the fact remains that the FSL Report has not been forthcoming on record and the burden to prove the same naturally lies on the prosecution and under the circumstances, who had played the main and active role, has not been established as the prosecution has not produced the FSL Report. Moreover, it was also the duty of the trial Court to see that in absence of the FSL Report adverse inference could be drawn against the prosecution but the same has not been done. 5.7 In view of aforesaid, in the considered opinion of this Court, the prosecution has failed to prove the case against the accused beyond reasonable doubt and the learned trial Judge has erred in considering and evaluating the evidence on record, which requires interference at the hands of this Court. 5.7 In view of aforesaid, in the considered opinion of this Court, the prosecution has failed to prove the case against the accused beyond reasonable doubt and the learned trial Judge has erred in considering and evaluating the evidence on record, which requires interference at the hands of this Court. Further, the learned Additional Public Prosecutor is not in a position to show any evidence to take a otherwise view in the matter than above. In that view of the matter, present appeal deserves to be allowed by setting aside the impugned judgment and order and the appellants - accused requires to be acquitted giving benefit of doubt. 6. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 27/04/2012, passed by the learned Sessions Judge, Bhavnagar, in Sessions Case No. 130 of 2009, is set aside and the appellants herein - original accused are acquitted of the charges for which they are convicted and sentenced, by giving benefit of doubt. As aforesaid, the appellant No. 2 - original accused No. 2 - Ghusabhai Chhaganbhai has already undergone the sentence imposed upon, whereas, the appellant Nos. 1 and 3 - original accused Nos. 1 and 3 are reported to be on bail. Accordingly, they are not required to surrender to custody except they require so in any other case and their bail bond shall stand cancelled. Registry to return the R&P to the trial Court forthwith. Appeal Allowed.