JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals arise out of the same incident which culminated into First Information Report lodged at Sami Police Station on 10.05.2005 being C.R. No. I-40 of 2005 for the offences punishable under Sections 302, 147, 148, 149 and 506(2) r/w 34 of Indian Penal Code and offence punishable under Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989 wherein the appellants of Criminal Appeal No. 304 of 2007 as well as respondent of Criminal Appeal No. 1861 of 2008 were arraigned as accused. However, two different sessions cases were registered in view of the fact that accused of Criminal Appeal No. 1861 of 2008 had been absconding and therefore after his arrest different Sessions Case was registered being Spl. Atrocity Case No. 8 of 2007 whereas first Case is numbered as Special Atrocity Case No. 22 of 2005. 1.1 Criminal Appeal No. 304 of 2007 is preferred against the judgement and order dated 16.01.2007 passed by the Special Judge, 2nd Fast Track Court, Patan whereby the accused of Sessions Court were held guilty of the offences punishable under Sections 302 r/w 34 of Indian Penal Code and were sentenced to life imprisonment and imposed fine of Rs. 5000/- in default to undergo sentence of one year simple imprisonment thereunder. The accused therein were acquitted under Sections 147, 148,149 and 506(2) of Indian Penal Code and offence punishable under Section 3(1)(x) of the Scheduled Caste & Scheduled Tribe [Prevention of Atrocities] Act. 1.2 Similarly, Criminal Appeal No. 1861 of 2008 has been filed by the State of Gujarat against the acquittal of the respondent therein recorded by the Special Judge, Patan in Special Atrocity Case No. 08 of 2007 whereby the accused therein was acquitted of the offence under Sections 302, 147, 148, 149and 506(2) of Indian Penal Code and offence punishable under Section 3(1)(x) of the Scheduled Caste & Scheduled Tribe [Prevention of Atrocities] Act. 2. It is the prosecution case that on 10.05.2005, the complainant had gone to market where Thakor Prahaladji Sukhaji - deceased met him and they went towards Sami Nagrik Bank at about 10.45 am and at that time accused persons came there and started an altercation with the complainant. 2. It is the prosecution case that on 10.05.2005, the complainant had gone to market where Thakor Prahaladji Sukhaji - deceased met him and they went towards Sami Nagrik Bank at about 10.45 am and at that time accused persons came there and started an altercation with the complainant. Thereafter, respondent of Criminal Appeal No. 1681 of 2008 who was holding a knife along with the appellants of Criminal Appeal No. 304 of 2007 attacked the deceased on his chest with knife and also gave blow on the stomach of deceased. The complainant tried to save the deceased but he was also attacked by the accused persons. The complainant somehow escaped from the scene of offence shouting for help. A crowd gathered there and therefore the deceased ran away from the scene of offence. The deceased was taken to hospital but he succumbed to the injuries. A complaint was therefore lodged by the complainant in this regard. 2.1 The accused of Criminal Appeal No. 304 of 2007 were apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions which was numbered as Special [Atrocity] Case No. 22 of 2005. The accused of Criminal Appeal No. 1861 of 2008 was absconding and therefore after his arrest the case was numbered as Special Atrocity Case No. 8 of 2007. The trial was initiated against the accused in both the cases differently. 2.2 So far as Criminal Appeal No. 304 of 2007 (Spl Atrocity Case No. 22 of 2005) is concerned, during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides: P.W. No. Name of Witness Exhibit No. 1 Dr. Parbhatbahi Patel 20 2 Dr. Chunilal kumavat 24 3 Maheshbhai Parmar 32 4 Bhikhabhai Prajapati 36 5 Harishankar Rajgor 37 6 Harishankar Rajgor 38 7 Rasikbhai Darji 45 8 Jamaji Thakore 53 9 Asif Kazi 56 10 Ramzansha Pir 58 11 Gunvantbahi Panday 59 12 Govindbhai Desai 66 13 Rameshchandra Patil 69 14 Govindbahi Somabahi 74 15 Babubahi Pandor 76 2.3 The prosecution also relied upon the following documents as documentary evidences which have been perused by us such as case papers of deceased at Ex. 23, death form at Ex. 27, P.M. Note at Ex. 29, Complaint at Ex. 33, inquest panchnama at Ex. 36/1, scene of offence panchanama at Ex. 23, death form at Ex. 27, P.M. Note at Ex. 29, Complaint at Ex. 33, inquest panchnama at Ex. 36/1, scene of offence panchanama at Ex. 39, FSL report at Ex. 83, Serological report at Ex. 84, caste certificate of complainant at Ex. 77, map of scene of offence at Ex. 68, panchnama of body condition of accused at Ex. 63 etc. 2.4 So far as Criminal Appeal No. 1681 of 2008 (Spl. Atrocity Case No. 8/2007) is concerned, the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides: P.W. No. Name of witness Exhibit No. 1 Maheshbahi Parmar 17 2 Ramshankar Revashankar 20 3 Rasikbahi Darji 28 4 Prajapati Bhikhabhai 37 5 Harishankarbhai Rajor 38 6 Manojkumar Jayantilal 42 7 Rameshkumar Jamnada 44 8 Dr.Amratal Veerchanddas 47 9 Dr. Parbatbhai Amrabhai 48 10 Karmanbhai Desai 54 11 Dr. Babubhai Chaudhary 56 12 Dr. Cunilal Kumavat 59 13 P.C. Bhikhabhai Parmar 66 14 PSI Ramchandra Patil 67 15 PSO Govindbhai Somabhai 68 16 Babubhai Ramjibhai 72 17 Kiritkumar Erda 85 18 Raghubharsinh 90 2.5 The prosecution also relied upon the following documents as documentary evidences which have been perused by us such as complaint at Ex. 18, panchnama of scene of offence at Ex. 21, panchnama of clothes of complainant at Ex. 30, inquest panchnama at Ex. 38, P.M. Note at Ex. 64, death form at Ex. 61, cause of death certificate at Ex. 65, discovery panchnama at ex. 74, serological report at Ex. 83 etc. 2.6 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the trial court convicted/acquitted accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the accused as well as State have preferred the present appeals. 3. Mr. B.B. Naik, learned Senior Advocate appearing for the accused in Criminal Appeal No. 304 of 2007 made the following submissions: "(I) No witness from the bazaar is examined though the incident took place in the bazaar and the shops were open - In this regard he has submitted that independent witnesses such as Prakash and Mahendra Nai who had their shops in the market were not examined. He submitted that their presence at the scene of offence is natural and yet they were not examined. (II) The deceased was bleeding profusely as is the case of the prosecution; blood was found near the shop of Mahendrakumar Nai and also at a distance of 30' from the shop of Mahendra, near the otla of house of Bharatkumar Bhavsar. He submitted that Mahendrakumar could have been a crucial witness as his shop was open and he was present at his shop but still this witness has not been examined. (III) So called two eye witnesses are not natural witnesses but are chance witnesses and looking to their association with the saffron outfit they can be said to be got up witnesses. He submitted that the so called witnesses are in one or the other way interested or connected with the deceased and therefore their evidence is doubtful inasmuch as Harish claims to have reached the scene of offence first whereas Mahesh has claimed to have reached the scene of offence first. Moreover, there are inconsistencies in their evidence. (IV) It is borne out that the deceased had tried to run away from the scene of offence as there seems to be blood collected at the place of offence as well as the shop of Mahendra Nai. He submitted that had P.Ws. 4 & 5 been eye witnesses to the incident they would have smoothly answered all the questions put forth to them in the cross examination which has not been the case here. He submitted that any witness who was present at the scene of offence or at the hospital could have noticed many things which is not coming out from the evidence of these so called witnesses. He submitted that the witnesses are not even able to properly recount as to exactly which part of the body blows were given. (V) The first informant turned hostile and the even then the approach of the trial court is very strange. (VI) The medical evidence suggests that injuries were sustained by a double edged (elliptical) weapon and that out of nine injuries, eight injuries are said to have been possible by way of double edged weapon. In this regard he has submitted that the muddamal weapon in the present case is said to be single edged and therefore the case of the prosecution is not supported by the medical evidence. In this regard he has submitted that the muddamal weapon in the present case is said to be single edged and therefore the case of the prosecution is not supported by the medical evidence. (VII) Post mortem report suggests that the death of the deceased must have taken place much earlier than the time given by the prosecution. In this regard it is submitted that the entire body had entered into rigor mortis and therefore the time of death did not match as per the case of the prosecution. It is submitted that the death of the deceased might have occurred between around 02.00 am to 04.00 am and that undigested food contents were found at the time of post mortem. He submitted that no time is mentioned in the FIR about the death. He submitted that the doctor who conducted the post mortem has mentioned that the body was lying for 6 to 12 hours and therefore the time of death is prior to 10.45 am. He submitted that the prosecution has not been able to explain all these aspects. (VIII) The jeep in which the deceased was allegedly taken to Harij and from Harij to Patan was not seized by the police and Vipul - the driver of the jeep has also not been examined. (IX) Police did not seize blood stained clothes of the first informant on the same day but instead directed him to produce the same on the next day. (X) The clothes of accused who are alleged to have lifted the deceased to put him in the jeep have not been seized by the police. (XI) The clothes of deceased were not seized at the time of post mortem at Patan but were seized after they were produced by the brother of deceased on 11.05.2005. (XII) Statement of Dr. Patel who treated the deceased is not recorded and he has also not been examined by the prosecution. (XIII) Blood group of the deceased is 'B group as per the FSL report whereas the blood found on clothes of deceased, first informant, accused No. 4 and weapon said to be used by accused No. 3 and the blood found from the scene of offence belonged to blood group 'AB'. (XIV) As per the evidence it has come on record that the Dy. (XIV) As per the evidence it has come on record that the Dy. S.P came to know about the murder at 11.00 pm and though police chowky was at a distance of only 100 to 150 feet no one was examined. No one from the chowky was present either." 4. In support of the aforesaid submissions, Mr. Naik has relied upon the following decisions: "(i) Vinodgar @ Rameshgar Jivangar Goswami Bavaji & Anr. v. State of Gujarat reported in 2015(1) GLR 58 wherein para 28 reads as under: "28. We shall now deal with the circumstance of the blood being detected on the shirt and the pant of the accused No. 1 whereas on the pant of the accused No. 2 matching with the blood group of the deceased. It appears that after the arrest of the accused persons and while drawing the arrest panchnama the clothes worn by the accused-appellants were collected and were sent to the Forensic Science Laboratory for the chemical analysis. Relying on the serological test report, Exh. 146, the prosecution wants to establish that at the time of the incident the clothes of the accused No. 1 and the accused No. 2 were stained with blood matching with the blood group of the deceased. According to the prosecution, it is one of the circumstances connecting the accused with the crime. It is no doubt true that the serological test report, Exh. 146, reveals that the human blood was detected on the shirt and the pants of the accused No. 1 whereas on the pant of the accused No. 2. This circumstance also, in our opinion, is hardly of any consequence for more than one reason. First all the panch witnesses have turned hostile. Even the panchnama of the collection of the clothes of the accused persons at the time of their arrest has not been proved in accordance with law. This circumstance also, in our opinion, is hardly of any consequence for more than one reason. First all the panch witnesses have turned hostile. Even the panchnama of the collection of the clothes of the accused persons at the time of their arrest has not been proved in accordance with law. However, even assuming for the moment that such clothes were collected and were sent to the Forensic Science Laboratory for chemical analysis and the report indicates presence of human blood on the clothes, even then it cannot be considered as one of the incriminating circumstances against the accused for the reason that such circumstance was not put to the accused persons by the trial Court while recording their further statement under Section 313 of the Criminal Procedure Code so as to give an opportunity to the accused-appellants to explain such incriminating circumstance. Mr. Naik, the learned Senior Advocate appearing for the accused- appellants has taken us through the further statement of the accused persons recorded under Section313 of the Criminal Procedure Code and we find that no question was put in this regard to the accused No. 1 and the accused No. 2. What will be the implication of such an omission on the part of the trial Court is the mute question. If such circumstance was not put to the appellants in their further statement recorded under Section 313 of the Criminal Procedure Code then they must be completely exonerated from consideration because the appellants did not have any chance to explain them. This has been consistently held by the Supreme Court as far back as in 1953 where in the case of Hate Singh Bhagat Singh v. State of Maharashtra AIR 1953 SC 468 ], the Supreme Court held that in circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code (old Code) cannot be used against him. Ever since this decision, there is a catena of authorities of the Supreme Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 313 of the Criminal Procedure Code, the same cannot be used against him. " (ii) Ishwar Singh v. State of U.P reported in (1976) 4 SCC 355 wherein para 8 reads as under: "8. " (ii) Ishwar Singh v. State of U.P reported in (1976) 4 SCC 355 wherein para 8 reads as under: "8. Appellant Ishwar Singh was however found guilty under Section 302 simpliciter of the Indian Penal Code for the murder of Chauhal Singh. He died of shock and haemorrhage due to the sharp punctured wound on his chest caused, according to Dr. A.P. Mathur, Additional Civil Surgeon, Meerut. who conducted the post-mortem examination, by "some sharp edged pointed weapon". He added that the wound "might have been caused with a ballam". But whose hand was it that dealt this fatal blow with a "sharp edged pointed weapon"? P.W. 1 Mahabir, P. W 2 Satyapal, P.W. 6 Ram Rikh and P.W. 7 Jait Singh have all repeated that it was Ishwar Singh who struck Chauhal Singh with a ballam. But for the reasons we have already given implicit acceptance of their evidence is not possible and one must look for independent corroboration of the fact. The evidence of Sub-Inspector Karam Chand (P.W. 8) is that a ballam was recovered from Ishwar Singh's house, and a bhalla from Harpal's. Dr. Mathur who said that the fatal injury "might have been" caused by a ballam, admitted on cross-examination that he did not know the difference between a ballam and a bhalla. By ballam he meant "such weapon as is sharp edged on both sides, pointed, and less than 2 cm. in width and he added that "if a bhala is of this very shape this injury is possible." It is not disputed that ballam and bhala are weapons of a similar type. Had the doctor seen the weapons seized from the houses of Ishwar Singh and Harpal, it might have been possible for him' to say which of them caused the injury. But the weapons seized were not shown to the doctor. In Kartarey v. State of U.P. (at pp. 80-81) this Court emphasized the importance of eliciting the opinion of the medical witness who had examined the injuries of the victim. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice. In this case it is impossible to say with certainty whether the injury was caused by the ballam or the bhala that were seized, and, therefore, whether it was Ishwar Singh or Harpal who was responsible for it, even if one believed that on the day of the occurrence the former carried a ballam and the latter a bhala. Ishwar Singh's conviction under Section 302 of the Indian Penal Code cannot also be sustained in these circumstances." (iii) Dinesh and Another v. State of Haryana reported in AIR 2002 SC 2374 wherein the Apex Court set aside the conviction under section 300 of Indian Penal Code when there was inconsistency between the eye witness account and medical evidence and number of injuries found on body of deceased caused by sharp edged weapon was two while prosecution case was that three accused assaulted deceased with sharp edged weapon. (iv) Shambhoo Missir and Another v. State of Bihar with Sarabjit Chamar and Another v. State of Bihar reported in (1990) 4 SCC 17 wherein paras 4 & 5 read as under: "4. The substance of the prosecution case is that the deceased Rajendra died as a result of the assault in question at about 3.00 PM on the very day of the incident. However, on the basis of the medical evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8.00 AM. Dr. Shambhoo Sharan (PW 13) who performed the post-mortem examination of the dead body, has stated both in his report as well as in his deposition, that there was 8 oz. of undigested food on the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3.00 PM, no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8.00 AM. If this is so, then the whole case of the prosecution must crumble. of undigested food on the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3.00 PM, no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8.00 AM. If this is so, then the whole case of the prosecution must crumble. For this will establish beyond doubt that Rajendra had died very soon after 8.00 AM and none of the so called eye-witnesses had seen the assault on Rajendra. The said fact will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. Unfortunately, the High Court has failed to deal with this very important aspect of the evidence on record which has been highlighted by the trial court. It also strengthens the defence version that the accused have been involved in the present case by the obliging witnesses and unfair investigation. 5. The trial court in addition, has relied on other circumstances to negative the prosecution case. It has pointed out material contradictions in the prosecution evidence which falsifies the prosecution version even otherwise. In the first instance, it is pointed out that there is no evidence on record that the villagers had at that time started harvesting and the deceased's land was harvested on that day either wholly or partly. If that is so, then the entire version of the prosecution that the deceased accompanied by his son, the informant, had gone for harvesting to his field is gravely in doubt. This will also throw doubt on the prosecution story that the informant had accompanied the deceased to the field as alleged and that the deceased had engaged about 7 to 8 labourers for harvesting on that day. In fact, Mukti Missir (P.W. 12) the other son of the deceased and the brother of the informant has admitted in his deposition that he did not know till the day he was examined in the court, about the number of the labourers who were engaged or their names except that of one. Jwahir Chamar. Nor could the informant himself give the names of the labourers except that of the said Jwahir. Jwahir Chamar. Nor could the informant himself give the names of the labourers except that of the said Jwahir. Secondly, it is pointed out by the trial court that Jwahir Chamar (PW 7) could also give the names only of two of the laboures and females but not of others. Thirdly, the Investigating Officer also did not testify to the fact that the deceased's field was harvested on the day of the occurrence. Fourthly, the version of the prosecution that the deceased had made dying declarations at three places, namely, in the field, at his house and at Parsauni and named the accused although nobody asked him about it sounds strange enough. Fifthly, the testimony of the informant himself is far from being above suspicion inasmuch as although it is his case that he had seen the actual assault and at that time there were other witnesses present to witness it, it has come out in his evidence that he did not know from where the other witnesses had come, and that he had no talk with them after the incident. The trial court has successfully shown that the evidence of the other prosecution witnesses the so called eye-witnesses, namely, PW 3, 4, 9, 11 and 12 was inconsistent and thoroughly unsatisfactory and they could not have seen the incident. The trial court has given convincing reasons to show that their testimony was false. The trial court has further emphasised the fact that actually there was a dispute between the deceased and one Harbans Missir, as a result of which Harbans Missir had filed a criminal case against the informant and his brother. There was also a criminal case filed against them by their uncle Parclyuman. It was admitted by constable (PW 16) that because of the dispute between the deceased and the said Harbans Missir two constables were deputed to the village for maintaining peace. The Assistant Sub-Inspector (PW 5) has also admitted that because of the dispute between the deceased and Pardyuman, a constable was deputed to maintain peace 20 days prior to the present occurrence. This shows that the deceased had many enemies at the time of the incident. Lastly, the trial court has pointed out that all the prosecution witnesses were interested in the deceased. Prosecution witnesses 1 and 12 were sons of the deceased while witnesses Nos. This shows that the deceased had many enemies at the time of the incident. Lastly, the trial court has pointed out that all the prosecution witnesses were interested in the deceased. Prosecution witnesses 1 and 12 were sons of the deceased while witnesses Nos. 3, 4 and all belonged to the party of the prosecution till the deceased was taken to Bettiah hospital. Prosecution witnesses 3 and 4 were arraigned in a proceeding under Section 17 of the Criminal Procedure Code alongwith the other members of the prosecution party. " (v) Kartarey and Others v. The State of U.P reported in (1976) 1 SCC 172 wherein paras 23 to 26 read as under: "23. Counsel further submits that no marks caused by dragging were found on the deceased, that all the stab wounds found on his body might have been inflicted with a chhura by one person. The medical testimony, it is contended, does not definitely exclude that possibility. He placed particular stress on the point that the chhura Ext. 1, was not shown to the medical witness, nor was his opinion specifically invited as to whether all or any of the injuries of the deceased could be caused with this weapon. 24. It is true that neither the parties nor the trial Court asked the Medical witness Dr. Radha Mohan as to whether the injuries found on the deceased could be caused with this particular chhura Ex. 1. It seems that this weapon was not shown to the Doctor at all. The prosecution remained content with the general answer given by the Doctor that the injuries to the deceased appear to have been caused with "sharp-edged weapon such as chhuri and katar." 25. The learned Judges of the High Court also did not care to measure the breadth and length of the chhuri Ex. 1 and relate it to the dimensions of the wounds noted by the medical witness. All that they say is that this knife was "one span long, the blade was of 7 fingers' breadth", and as such it was a formidable weapon. We are unable to appreciate this crude way of measuring the weapon. It hardly furnishes any guide for relating it to the injuries of the deceased. 26. All that they say is that this knife was "one span long, the blade was of 7 fingers' breadth", and as such it was a formidable weapon. We are unable to appreciate this crude way of measuring the weapon. It hardly furnishes any guide for relating it to the injuries of the deceased. 26. We take this opportunity of emphasising the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically on this point, for the proper administration of justice particularly in a case where injuries found are forensically of the same species, e.g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice. Fortunately, in the instant case, the number, nature and dimensions of the injuries of the deceased, as deposed to by Dr. Sohan Lal, afford a sure indication that they were caused with three different weapons. There were sixteen stab-wounds which fall into three groups, the wounds in each group being of almost identical length and breadth. Thus, the length of each of the wounds 1, 3, 4, 5 and 15 was 3 cm. The breadth of each of these wounds (excepting that of Nos. 1 and 15 which was slightly less) was 1.5 cms. Wound No. 2 was 3.5 cm. x 1.5 cms. The length and breadth of wound No. 15 was 25 x 1 cm. The length of wounds 6, 8, 11, 12, 13 and 16 was 4 cms. each. Giving allowance for slight variations, it can be said that the breadth of these six injuries was very nearly the same. " (vi) Bhim Singh v. State of Haryana reported in (2002) 10 SCC 461 wherein paras 6 & 8 read as under: "6. We will not consider the case on the merits of the prosecution case as presented before the courts below. " (vi) Bhim Singh v. State of Haryana reported in (2002) 10 SCC 461 wherein paras 6 & 8 read as under: "6. We will not consider the case on the merits of the prosecution case as presented before the courts below. We notice that the appellant was gainfully employed with the CRPF and was visiting the village to see his ailing sister en route to his place of transfer in Tripura. There is no dispute in regard to this fact. There is also no dispute in regard to the fact that this appellant had no special reason to take sides with A-1 in a fight between A-1 and deceased; that too to go to the extent of committing a murder. It does not stand to reason why this appellant who is otherwise gainfully employed would take part in a crime of this nature without there being any special advantage to him nor there being any motive for him to be involved in the crime. The only case put forth by the prosecution in this regard is that the appellant and his brother were supporting A-1 in the dispute between A-1 and the deceased. Assuming that it is true, it cannot be a ground for the appellant to be involved in a murder case that too taking active part. This is as far as the motive goes. In regard to the incident as such, we notice that there is a dispute as to the actual time of occurrence. PWs.3 and 7 have stated that the incident in question had occurred at about 9 or 9.30 a.m. while PW-5 who is a Government photographer, has clearly stated in his examination-in-chief itself that when he went to the village to take photographs of the dead body, it was an hour after sunrise which was in the month of March, therefore, there was a considerable difference between the two timings which is relevant for the purpose of appreciating the evidence of PWs.3 and 7. The High Court in this regard has found corroboration for PWs. 3 and 7 evidence from the stomach contents of the deceased as found in the P.M. report. The High Court in this regard has found corroboration for PWs. 3 and 7 evidence from the stomach contents of the deceased as found in the P.M. report. We think this piece of evidence cannot always be relied on as conclusive evidence in the absence of there being some other evidence to show when the deceased had his last meal or when the deceased went to answer the call of nature. What intrigues us in this regard is the failure of the prosecution to clarify the time from PW-5 himself who has not been treated as a hostile witness, therefore, if there are two pieces of evidence in regard to the same fact both uncontroverted and uncorroborated then the benefit of doubt must be given to the accused. In the instant case, PW-5's evidence as to the timing has not been challenged by the prosecution. The trial court accepted that version. The High Court refused to believe that solely on the ground that PW-5 had not recorded the time or he might have made mistake because he was giving evidence after considerable time -either of these reasons according to us, is not good enough to reverse the finding of the Sessions Court in this regard. 8. The High Court has relied on the recovery of a.12 bore gun at the instance of the appellant while the Sessions Judge has not placed any reliance on this recovery. It is seen from the records that before the appellant was brought to the village, the house of A-3 was searched by the Police and they did not find any weapon. It is a few days thereafter when the appellant was arrested. The prosecution alleges that on the basis of his statement the recovery of the gun was made from the Chabutra near the house of A3. The panch witness for this recovery has not supported the prosecution case. In such a situation and in the background of the fact that on an earlier search of the house, the police were unable to recover this gun it becomes doubtful whether a recovery as stated by the investigating agency can be believed, more so the panch witness has not supported the recovery. Therefore, in our opinion even the recovery allegedly made at the instance of the appellant cannot be relied upon. Therefore, in our opinion even the recovery allegedly made at the instance of the appellant cannot be relied upon. If this be the conclusion in regard to the prosecution case we think it is not necessary to go into the defence put forth by the appellant because the prosecution should either succeed or fail on its own case. In the instant case we agree with the learned Sessions Judge that the prosecution has not established its case even against the appellant and the High Court was in error in selectively accepting the evidence tendered by the prosecution in regard to the appellant to come to the conclusion that he is guilty of the offence charged." (vii) B.N. Singh and Others v. State of Gujarat and Others reported in (1990) 2 SCC 154 wherein paras 9 & 10 read as under: "9. We have also examined the evidence of these three witnesses and their cross-examination and we are satisfied that they are highly interested witnesses. Apart from false implication of accused No. 3 we are also of the view that the vague allegation that accused Nos. 2, 3 and 6 caught hold of deceased appears to be equally false. All these witnesses have stated that they heard the shouts and when they went to the place of occurrence they saw that accused Nos. 2. 3 and 6 caught hold of the victim and that accused Nos. 1, 4 and 5 dealt knives blows all over the body, one of them on the back and the others on the front. The Doctor P.W. 13 found 11 injuries all over the body namely on both sides of the chest, clavicular region, hypochondria region, abdomen, thighs, scapula and para vertebral region. If really three persons were holding the deceased in the manner spoken to by these interested witnesses, the other three persons armed with big knives could not have indiscriminately caused the injuries on all parts of the body in that manner. It would not have been possible for them to cause injuries without causing hurt to the persons so holding. Therefore, we are not prepared to accept the prosecution version that accused Nos. 2, 3 and 6 caught hold of the deceased and accused Nos. 1, 4 and 5 inflicted the injuries in that manner. It would not have been possible for them to cause injuries without causing hurt to the persons so holding. Therefore, we are not prepared to accept the prosecution version that accused Nos. 2, 3 and 6 caught hold of the deceased and accused Nos. 1, 4 and 5 inflicted the injuries in that manner. As a matter of fact, in the report given by P.W. 4, it is stated that all the accused surrounded the deceased and were beating him. It is further stated that accused Nos. 1, 4 and 5 stabbed 4 or 5 times on the chest and thighs of the deceased and accused Nos. 2, 3 and 6 held his hands. 10. The High Court has held that the evidence of P.W. 4 is corroborated by the circumstance namely that the complaint was given within 20 minutes and the medical evidence, panchnama of the scene of occurrence and the evidence of P.W.5 also corroborate. But these circumstances only at the most may establish the place and time of the occurrence and the nature of weapons used but the corroboration should be in respect of the complicity of the accused and incriminating. Regarding P.W.6 the High Court noticed several infirmities in his evidence but however held that, even if his evidence is to be ignored the evidence of P.W.4 and 5 is sufficient to convict the accused except accused No. 3. It is well-settled that the evidence of interested witnesses can not be discarded on the, sole ground of interestedness but their evidence should be subjected to a close scrutiny, But in the instant case, the circumstance namely that accused No. 3 was falsely implicated is glaring and renders the evidence of these interested witnesses highly suspicious. The Sessions Judge no doubt endeavoured to show that these witnesses P.Ws 4 and 5 are not interested but that is not. altogether correct, In the cross-examination P.W. 4 has admitted that he was dismissed 10 days prior to the incident and that there was a case against him that he assaulted Fernandes who was the President of the rival Union. He also admitted that the accused Bhola Singh abused him because there was member of the rival Union. altogether correct, In the cross-examination P.W. 4 has admitted that he was dismissed 10 days prior to the incident and that there was a case against him that he assaulted Fernandes who was the President of the rival Union. He also admitted that the accused Bhola Singh abused him because there was member of the rival Union. Likewise P.W. 5 admitted in the cross examination that he was a badli since 8 months prior to the incident and he was not allotted a quarter and he was staying with one Chauhan. Therefore this admission goes to show that he was a worker and naturally he must have aligned with the rival Union. P.W. 6 was an operator in the Viscose Department of the Corporation. He admitted in the cross examination that he belongs to the rival Union and the other admissions made by him also go to show that he is partisan. As already observed the evidence of partisan witnesses cannot be rejected outright but in this case when they have gone to the extent of implicating one accused falsely and that their version that three of the accused caught hold of the deceased is not acceptable. We find it highly unsafe to rely on their evidence against any of the accused. In view of this glaring infirmity in their evidence we are of the view that their evidence is not trustworthy against any of the accused and any reliance placed on such evidence is likely to result in miscarriage of justice. Therefore for all these reasons we set aside the convictions and sentences of all the accused appellants. Accordingly, these appeals are allowed and the Criminal Appeal No. 476/80 filed by the State is dismissed. " (viii) Kunju Mohammed Alias Khumani and Another v. State of Kerala reported in (2004) 9 SCC 193 wherein para 9 reads as under: "9. From the judgment of the trial court, we notice that in regard to the time of incident, the trial court relied upon the evidence of PW-1 who lodged the complaint Ex. P-1. He in his examination in chief itself has stated that he signed Ex. P-1 on the midnight of 3.11.1991. This witness was treated as hostile and cross examined by the prosecution. P-1. He in his examination in chief itself has stated that he signed Ex. P-1 on the midnight of 3.11.1991. This witness was treated as hostile and cross examined by the prosecution. If this was the sole piece of evidence on which the trial court relied upon to come to the conclusion that the incident in question might not have taken place at 8.15 a.m. on 3.11.1991 we would have definitely disagreed with the trial court but then the trial court also relies on the fact that Ex. P-1 did not reach the Magistrate Court at least till the evening of 4.11.1991 as could be seen from the endorsement in the FIR. This omission on the part of the prosecution to explain why the FIR did not reach the jurisdictional Magistrate till the evening of 4.11.1991 even though the incident in question had taken place at 8.15 a.m. and reported to the police at 8.45 a.m. on 3.11.1991 itself casts very serious doubt which lends support to the evidence of PW-1 that the complaint was got ready only on the midnight of 3/4.11.1991. It should be borne in mind that the distance between the Magistrate's court and the Police Station being in the same town was very close. Then again it is to be noticed from the evidence of PW-10 who is admittedly a very close friend of deceased Majeed that on 3.11.1991 at about 7 a.m. when he was in his house, he had come to know that somebody had killed Majeed which was told to him by a friend and he reached the Police Station by 7.30 a.m. which was again a time much earlier than the time of incident as projected by the prosecution. This also supports defence version that the incident in question could not have taken place at 8.15 a.m. We further notice that the doctor PW-13 who conducted the postmortem examination had noted that the rigor mortis had formed and was found all over the dead body at the time when he conducted the postmortem. He in his evidence had stated that in his opinion the rigor mortis sets in within about 4 to 7 hours of the death. He in his evidence had stated that in his opinion the rigor mortis sets in within about 4 to 7 hours of the death. If we apply the yardstick as spoken to by PW-13 of the starting of rigor mortis to the facts of this case then we notice that in the instant case the death must have occurred prior to 8 a.m., because if the rigor mortis starts within 4 to 7 hours of death then it would taken some time to reach all parts of body and in the instant case, rigor mortis was found in the entire body of the deceased, therefore, to reach this stage if we take 4 hours as the starting point, it would have taken some more time to reach different parts of the body, therefore, we think it is reasonable to take the upper limit of rigor mortis reaching the entire body as 7 hours and if we work backwards then we notice that the death in question must have occurred before 6.30 a.m. on 3.11.1991 which actually fits into the other facts noticed by us hereinabove while discussing the time of death." 5. Mr. Mitesh Amin, learned Public Prosecutor has supported the impugned judgement and order so far as Criminal Appeal No. 304 of 2007 is concerned. He has taken us to the evidence on record including the judgement and order passed by the trial court and submitted that the trial court has given cogent and convincing reasons for basing the conviction. 5.1 Mr. Amin has drawn the attention of this Court to the injury certificate issued by the Medical Officer, Referral Hospital and PHC, Harij, Patan and submitted that a close scrutiny of the same would reveal that the patient was taken to hospital at around 11.55 am wherein the history given is assault with knife. He submitted that it is also borne out that the patient is unconscious which means that the deceased was alive when he was taken to hospital. He submitted that this very evidence puts to rest the contentions of the learned advocate for the appellant with regard to time of death of deceased. He submitted that it is also borne out that the patient is unconscious which means that the deceased was alive when he was taken to hospital. He submitted that this very evidence puts to rest the contentions of the learned advocate for the appellant with regard to time of death of deceased. He has also taken us to the cross examination of the medical officer who treated the deceased wherein a suggestion has been put to him that the certificate was bogus and was issued inspite of the fact that the patient was dead which has been denied by the witness. He submitted that it is also borne out and is clear that the assault was by way of a sharp cutting instrument which in the present case is a knife. 5.2 Mr. Amin has relied upon a decision of this Court in the case of Babu @ Babu Bajaniya Kalubhai Motibhai Parmar v. State of Gujarat reported in 2013(3) GLR 2743 which has been confirmed by the Apex Court by summarily dismissing the SLP. He has submitted that two earlier attempts were made to attack the deceased which is borne out from the record. He has submitted that this Court may therefore not interfere in the present conviction appeal. He has also relied upon another decision of the Apex Court in the case of Jitender Kumar v. State of Haryana reported in (2012) 6 SCC 204 wherein para 50 reads as under: "50. The entire basis for this submission is the statement of PW3, Dr. L.L. Bundela, who stated that the stomach of the deceased contained some semi-digested food. It is worthwhile to note that the statement of this very witness that the death of Indra could have taken place between 1.00 to 1.30 a.m. remained unchallenged. Furthermore, it cannot be stated as a rule of universal application that after a lapse of two to three hours stomach of every individual, without exception, would become empty. It would depend upon a number of other factors like the caloric content and character of the solid food. Further, addition of fats, triglycerides and carbohydrates such as glucose, fructose and xylose to a solid meal can delay its emptying from the stomach, presumably because of their effect on the initial lag phase of digestion of solids. Furthermore, the presence of liquids in the stomach prolongs this initial lag phase of solid emptying. Further, addition of fats, triglycerides and carbohydrates such as glucose, fructose and xylose to a solid meal can delay its emptying from the stomach, presumably because of their effect on the initial lag phase of digestion of solids. Furthermore, the presence of liquids in the stomach prolongs this initial lag phase of solid emptying. In fact, ingestion of a liquid bolus 90 minutes after a solid meal can induce a second lag phase of solid emptying from the stomach. " 5.3 So far as Criminal Appeal No. 1861 of 2008 is concerned, Mr. Amin submitted that the judgement and order of the Sessions Court is against the provisions of law and that the Sessions 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 proved the whole ingredients of the evidence against the present respondents. 6. Mr. Mrudul Barot, learned advocate appearing for the accused - respondent in Criminal Appeal No. 1861 of 2008 has supported the impugned judgement and order and submitted that the same having been passed in accordance with law so far as the acquittal of original accused - original accused in Spl. Atrocity No. 08 of 2007 is concerned, the same may not be disturbed. He has relied upon a decision of the Apex Court in the case of Thangavelu v. State of T.N. reported in (2002) 6 SCC 498 , more particularly para 5 which reads as under: "5. We have heard learned counsel and carefully looked into the material on record. From the evidence of PW-5, the doctor, we find that there is a possibility that the incident in question might have occurred about 39 hours prior to the post mortem. Though in the examination in chief, PW-5 has stated that the time between the death and post mortem could be 16 to 24 hours which fits in with the prosecution case, in the cross examination he has very clearly stated that in this case death would have been caused about 39 hours before the post mortem which would be sometime after 5.30 p.m. on 15.12.1990. This the doctor has stated by taking into consideration the time and month of the incident as also the time required for the setting of rigor mortis and passing off of the same. This the doctor has stated by taking into consideration the time and month of the incident as also the time required for the setting of rigor mortis and passing off of the same. According to the doctor, in the month of December in a place like Erode the rigor mortis may set in after about 2 to 3 hours after the death. He has stated that for the rigor mortis to reach from the leg to head, it would take 12 hours and the same would remain in existence for about another 12 hours. Thereafter, it would gradually diminish in the reverse direction i.e. from head to leg taking about another 12 hours and on this basis when he examined the body of the deceased, he found the rigor mortis had reversed almost to the end of the legs. By this process he came to the conclusion that the death in question must have occurred about 39 hours before post mortem. Though the prosecution has re- examined this witness on other points, not a single question is put to this witness in regard to this part of his evidence. Since there is no cross examination on this point and there being no other material to hold that the evidence of the doctor is either not scientific or contrary to known medical information, we have to conclude that there is a strong possibility that the death of D-1 and D-2 could have occurred much prior to 1.30 p.m. on 16.12.1990. If this doubt of ours is reasonable then the prosecution case should fall to the ground straightaway. But in view of the fact that the two courts below have thought it fit to rely on the evidence of eye witnesses and other circumstantial evidence, and the doctor's evidence is only a probability, we will consider other materials independently of the evidence of the doctor. It is an admitted fact that PW-1 stays a few kilometers away from the village where D-1 was residing. D-2 was D-1's brother and was residing in a different house opposite to that of D-1 along with PW-2, his wife and elder son Rengasamy. It is an admitted fact that PW-1 stays a few kilometers away from the village where D-1 was residing. D-2 was D-1's brother and was residing in a different house opposite to that of D-1 along with PW-2, his wife and elder son Rengasamy. On the date of the incident it is stated that PW-1 came to the house of his father D-1 and having found the house locked he went to the house of D-2 where he found PW-2, his wife and the other son Rengasamy sitting. On being enquired about D-1, he was told by these 3 persons that both his father and their father had gone near the cattle-shed, therefore, even though he had no specific work as such with his father instead of spending time with PW-2 and others, he went to meet his father near the cattle-shed. According to this witness, when he went near the place of the incident, he saw the accused first cut his father's head at the back of his neck forcibly with a sickle. Though he shouted at the appellant not to cut, the appellant proceeded to inflict 2 cuts on D-2 on the back side of his neck. At the same time he threatened this witness not to go near him or else he would cut him also. Thereafter it is stated by this witness that he again cut his father D-1 in the neck. He stated that he, his cousin Palanisamy, PW-2 and non-examined witness Rengasamy then chased the appellant but he fled from the scene. Thereafter when he came back to the spot of the incident, he found both his father and uncle dead. If we examine this evidence of PW-1 along with the evidence of PW- 5, the doctor, we find from the first blow of the sickle by the appellant the head of D-1 had almost totally severed and the same was hanging by the skin of the neck on the front side. The doctor has graphically explained this injury which shows that immediately after suffering the injury, D-1 must have died. But the evidence of PW-1 is that after he dealt the first blow to D-1 on his neck, he dealt 2 other blows also to D-2 severing his head almost from the body and then again he assaulted D-1 on the neck. But the evidence of PW-1 is that after he dealt the first blow to D-1 on his neck, he dealt 2 other blows also to D-2 severing his head almost from the body and then again he assaulted D-1 on the neck. If PW-1's evidence is compared with the medical evidence then we notice that this witness does not speak about the injury to the hand. He also says that after the chase of the appellant he came back and saw the dead body of D-1 and notice the injury on his hand and chest but nowhere in his evidence he has stated that he had seen this part of the attack on his father. Thus, as contended by the learned counsel for the appellant we do see this discrepancy in the evidence of PW-1 (which cannot be lightly brushed aside as contended by the learned counsel for the State). If we now examine the evidence of PW-2 in this regard we notice that after PW-1 came to the house and enquired about the whereabouts of his father and when they told him that he was near the cattle-shed, PW-2 says that he, his wife and his brother followed PW-1 to the place where their respective fathers were. They have not given any reason whatsoever why they chose to go to the said place while all along they were sitting in their house. Then PW-2 says that he saw the appellant assault D-1 with a sickle on the neck. He of course corroborates the evidence of PW-1 by saying that after the first attack on D-1, the appellant attacked D-2 twice on his neck and his father D-2 fell down on the spot. He also says that the appellant thereafter dealt the second blow on the neck. While like PW-1 he also does not speak about the attack on the chest and hand of D-1, therefore, his evidence also suffers from the same lacuna as that of PW-1. The rest of the evidence of PW-2 is almost in verbatim the same as that of PW-1. While like PW-1 he also does not speak about the attack on the chest and hand of D-1, therefore, his evidence also suffers from the same lacuna as that of PW-1. The rest of the evidence of PW-2 is almost in verbatim the same as that of PW-1. If we examine the evidence of these two witnesses in the background of the fact that there is some doubt as to the time of death of D- 1 and D-2 as spoken to by the doctor, PW-5 coupled with the fact that the incident in question had occurred on a mid-day at a place where there were nearly 50 houses and none of those persons are supposed to have seen the incident, creates doubt in our minds as to the prosecution case. Here we may notice that any independent eye-witness cited by the prosecution PW-6 has not supported the prosecution case. This witness being the sister of the VAO, PW-11, who had written Ex. P-1 cannot be presumed in any manner, as having been won over by the accused nor is there any suggestion to that effect. It is also to be noted at this stage that for reasons not explained, the prosecution has failed to examine the other two eye-witnesses viz., Rengasamy s/o D-2 and Thulasi Ammal, wife of PW-2. The defence has pointedly suggested that these witnesses have not been examined because of property dispute in the family which is suggested as one of the possibilities for the murders of D-1 and D-2. There is also material on record to show that the land in which the deceased were digging was not their land and the interference by the deceased with the possession of the land was not liked by others who had an interest in the land. If that be so, there were others who also entertained animosity with the deceased apart from the appellant. In these circumstances, we find it difficult to rely on the testimony of these two interested eye witnesses. In our opinion there is sufficient justification for the learned counsel for the appellant to contend that the prosecution having failed to examine all the eye witnesses in these facts and circumstances of the case, reliance can hardly be placed on the evidence of PWs.1 and 2 to convict the appellant. " 7. In our opinion there is sufficient justification for the learned counsel for the appellant to contend that the prosecution having failed to examine all the eye witnesses in these facts and circumstances of the case, reliance can hardly be placed on the evidence of PWs.1 and 2 to convict the appellant. " 7. So far as acquittal appeal being Criminal Appeal No. 1861 of 2008 is concerned, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr, reported in (2006) 6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below." 7.1 Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 the Apex Court laid down the following principles: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: [1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. [3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. [4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 7.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 7.3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under: "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 7.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 7.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under: "... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 7.6 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary. from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr. from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr. Amin, learned Public Prosecutor is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record so far as the acquittal of the accused of Spl. Atrocity Case No. 8 of 2007 is concerned. We are therefore of the view that the view taken by the trial court in Spl. Atrocity Case No. 8 of 2007 is just and proper and the appeal therefore requires to be dismissed. 8. This takes us to Criminal Appeal No. 304 of 2007 wherein the challenge is to the conviction recorded by the trial court against original accused No. 1 to 4 in Special Atrocity Case No. 22 of 2005. It shall be pertinent to go through the evidence of P.Ws. 3, 4 & 5 of Sessions Case No. 22 of 2005. 8.1 P.W. 4 - Bhikhabhai Prajapati has been examined vide Ex. 36. This witness has stated that the incident took place in Bhavsar Sheri, Sami at around 10 : 45 am on 10.05.2005. He has stated that on that day, he was going towards the market from his home. As he reached Vaandhibazaar, he heard shouting 'save save' and therefore he reached the corner of Bhavsar Sheri. He has stated that when he reached the spot, Jabbarnoor Pir, Lalapira Master, Bilal Habib Polar, Makbul Miraji, Munna Seriya and Umarnoor Tunda were giving blows forcefully to Prahladji Thakor with knife. On seeing this, Harishankar Rajgor and Mahesh Parmar and he himself also rushed there. On seeing these people, those persons ran away from there. While running, they were speaking as to where is the president of Vishwa Hindu Parishad, he should also be killed. Meanwhile, Prahladji fell down in serious condition. As there was excessive bleeding from his body, Vipul Pandya's vehicle was called immediately and he was taken to Harij Hospital. The doctor told to refer him to Patan as his condition was very critical. This witness has further stated that after reaching Patan, the doctor examined Prahladji and said that, he is died. As there was excessive bleeding from his body, Vipul Pandya's vehicle was called immediately and he was taken to Harij Hospital. The doctor told to refer him to Patan as his condition was very critical. This witness has further stated that after reaching Patan, the doctor examined Prahladji and said that, he is died. Thereafter, the postmortem of Prahladji got conducted and the dead body of Prahladji was taken to Sami in the evening and his funeral ceremony was performed. 8.2 P.W. 4 has stated that the reason for occurrence of the said incident was that Prahladji Thakor and Maheshbhai Khemabhai Parmar were activists of Vishwa Hindu Parishad and a quarrel had taken place earlier in that regard and keeping animosity thereof, he was killed. He has further stated that four accused persons out of the accused persons whose names he had stated, were present in the Court and he identified them, whereas Jabbarnoor Pir and Bilal Habib Polar were not present in the court. The police took my statement regarding the incident. 8.3 P.W. 4 has been cross examined at length. This witness has stated that he did not have an idea of such fact that, by addressing whom, the accused persons were stating "Where is the president of Vishwa Hindu Parishad, he should also be killed.'' He has denied that the accused persons were speaking the same together and he has also denied that they might have spoken one by one. He has stated that one person out of the accused persons spoke so. The witness voluntarily stated that the remaining accused persons were supporting him. He has stated that he could not say as to who was speaking and who supporting him. He has stated that the accused persons were not running away. The accused spoke the above sentence after going some steps ahead. At that time, they were walking ahead. This witness has stated that he had dictated in his examination in chief that, "These persons were stating ...... while running''. He has clarified that he had stated it in hurry and that he had seen the accused persons running away. At that time, he was 20 feet away from them. He has agreed to the suggestion that shops and residential houses are situated in both sides of the market. while running''. He has clarified that he had stated it in hurry and that he had seen the accused persons running away. At that time, he was 20 feet away from them. He has agreed to the suggestion that shops and residential houses are situated in both sides of the market. 8.4 P.W. 4 has agreed to the suggestion that at the time of incident in question much hustle-bustle of persons was going on in the market and that the shops were open and that the hospital of Dr. Patel is situated at a distance of about three feet from the place of the incident. This witness has stated that he knew the shopkeepers who had their shops of the scene of the incident. He has named one Mahendrabhai Naathi, Prakashkumar Natavarlal Pandya, Mahesh Bhavsar as the main shop owners. This witness has stated that he had spoken to one Prakashbhai Pandya at that time, and told him to make an arrangement of jeep immediately as Prahlad was to be taken to hospital. This witness has further stated that at the time of the incident, he did not know that, there was police chowky on that place. He has stated that Harishankar Rajgor, Prakash Pandya, Maheshbhai Parmar and he himself took Prahladji to Harij Hospital. He has stated that they lifted Prahladji and made him sit in jeep. At that time, there was bleeding from the body of Prahladji and his clothes were also stained with blood. At that time, the clothes of the complainant Maheshbhai became blood stained, but his clothes were not stained with blood. 8.5 P.W. 4 has stated that he did not know whether the clothes of Prakashkumar Pandya became blood stained and whether the clothes of Harishankar Rajgor became blood stained or not. He has agreed that the Government Hospital of Sami is situated on the public road and adjacent to bus stand and that it was situated there on the day of the incident also. He has agreed that as the Government Hospital of Sami was situated on the way, they would have taken him there, but as the surrounding area was of Muslim Community, they took him to Harij. 9. P.W. 5 - Harishankar Rajgor is another alleged eye witness in the present case. He has agreed that as the Government Hospital of Sami was situated on the way, they would have taken him there, but as the surrounding area was of Muslim Community, they took him to Harij. 9. P.W. 5 - Harishankar Rajgor is another alleged eye witness in the present case. As per his evidence the incident occurred on 10/5/05 at quarter to eleven o'clock in the morning at the entrance of Bhavsar Street. At that time he had left from my house to go to Bhavsar Street. He has stated that when he reached the entrance of Bhavsar Street, he saw that the Muslims of their village were assaulting Prahladji Thakor. He has named Jabbar Nurpir, Lala Abdulla, Munna Seviya, Makbul Miraji, Nur Tundo and Bilal Habib. This witness saw that Jabbar Nur was armed with a knife and Munna Seviya was also armed with a knife. Lala Abdulla was also armed with knife and Nur Tunda and Makbul Miraji had caught hold of both the hands of Prahladji and at that time Bilal Habib had caught hold of hair of Prahladji. Those persons were saying that he is a worker of Bajrang Dal and he should not he spared. While saying so they were giving knife blows indiscriminately. 9.1 P.W. 5 has further stated that when he shouted for help, Prakashbhai Pandya also arrived there. Prahladji collapsed over there and those six persons fled from there. Thereafter, they took the jeep of Vipulbhai Pandya and took Prahladji directly to Harij Government Hospital. As soon as the doctor examined him over there, they were told to take Prahladji to Patan. Accordingly, they took Prahladji to Patan Civil Hospital and the doctor declared him dead. 9.2 P.W. 5 has also been cross examined at length. He has stated in the cross examination that Maheshbhai had come to the place of occurrence. Maheshbhai was present there before he reached and Maheshbhai had accompanied them to Harij Hospital. He has stated that Maheshbhai and Bhikhabhai talked to the doctor at Harij and that he did not know as to what they talked. He has further admitted that Bhikhabhai and Bharatbhai laid Prahladji in the jeep. However, he did not know as to whether the clothes of all those three persons were stained with blood. He has stated that he did not see whether their clothes were stained with blood. He has further admitted that Bhikhabhai and Bharatbhai laid Prahladji in the jeep. However, he did not know as to whether the clothes of all those three persons were stained with blood. He has stated that he did not see whether their clothes were stained with blood. He has stated that his clothes were not blood stained. He has admitted that Prahladji sustained many injuries on the body, but he did not count the injuries. He has denied the suggestion that Prahladji was murdered between half past seven to quarter to eight o'clock in the morning. 9.3 P.W. 5 has further stated that he resided in Vanta Vas and this Vas is about hundred feet far from the place of occurrence. He has stated that he was going to take pant from the place of Rasikbhai Darji and as soon as he reached the shop he saw the accused persons assaulting the deceased and it might have taken three to four minutes when the accused persons fled from the place. He has stated that Jabbar Nurpir was saying that the worker of Bajrang Dal will not be spared; no one else was saying the same. He has denied the suggestion that the shop of Rasikbhai Darji is located near to the place of incident. He has stated that the house of Vardhibhai Damodar is located opposite to the shop of Rasikbhai Darjibhai. A house is located after that house and a confectionery shop is located thereafter. A shop is located after the same and thereafter, there is a road leading to inside part of Bhavsar Street. After that road, a confectionery shop belonging to Rameshbhai Modi is situated. After a shop belonging to a bania and other two shops, a shop of Jayantibhai Darji is situated. After the shop of Jayantibhai Darji, there is a road leading inside the lane. After this road, the shop of Haribhai Nai is located. 10. Now if we peruse the evidence of P.W. 3 - Maheshbhai Khemabhai, this witness in his deposition vide Ex. 32 has stated that the incident had occurred at around 08.45 am. He has stated that he alongwith the deceased was going towards Nagarik Bank and at that time Jabbarnoor Pir, Lalapira Master, Bilal Habib Polar, Makbul Miraji, Munna Seriya and Umarnoor Tunda were coming. 32 has stated that the incident had occurred at around 08.45 am. He has stated that he alongwith the deceased was going towards Nagarik Bank and at that time Jabbarnoor Pir, Lalapira Master, Bilal Habib Polar, Makbul Miraji, Munna Seriya and Umarnoor Tunda were coming. He has stated that on spotting them, Jabbar Noor Pir told that these two people had escaped last time and therefore we need to finish them. This witness has stated that Jabbar Noor inflicted knife blows on the chest and stomach of the deceased whereas other accused persons had caught hold of the deceased. This witness has further deposed that at that time Prakash Pandya reached the scene of offence and started shouting 'Save Save'. He has stated that then Bilal Habib Polal had caught the deceased by his hair and Lala Abdulla as well as Munna Seviya gave knife blows to the deceased. Thereafter as people gathered, the accused persons ran away. 11. Going by the evidence of these witnesses, we find that the evidence of P.W. 3 is in contradiction with the evidence of P.W. 4 & P.W. 5. P.W. 3 in the cross examination very categorically stated that the four appellants were not present at the time of incident and that they had not given any blows to deceased and that he had named them under the pressure of other persons. This is in contradiction to the evidence given by P.W. 4 and P.W. 5. None of the shop owners of the market have been examined by the prosecution. In fact, from the evidence of P.W. 4 and 5, it is borne out that they reside at a distance from the scene of offence. The shop owners who had their shops in the market could have been examined by the prosecution. However, going by the evidence on record, we find that the prosecution has not been able to prove the case against the accused beyond reasonable doubt. The way and manner in which the incident had happened has not been explained and proved by the prosecution. The time of incidence, role played by the accused and the place of incidence has not been proved by the prosecution beyond reasonable doubt. Learned advocate for the accused has been successful in creating a doubt regarding the same. The way and manner in which the incident had happened has not been explained and proved by the prosecution. The time of incidence, role played by the accused and the place of incidence has not been proved by the prosecution beyond reasonable doubt. Learned advocate for the accused has been successful in creating a doubt regarding the same. It is no doubt true that the incident had taken place and there seems to be a motive behind the entire incident. Though, going by the entire evidence on record, there is a strong suspicion that the accused are involved in the alleged offence, we are not in a position to say that the prosecution has produced clinching evidence against the accused. Suspicion cannot take place of proof and therefore we are not inclined to accept the contentions of learned Public Prosecutor. 12. It is required to be noted that on the same set of evidence, one of the accused persons was acquitted by the trial court against whom acquittal appeal has been filed by the prosecution. The prosecution has failed to prove ocular evidence. The medical evidence is not in corroboration with the ocular evidence. The medical evidence shows that injuries were sustained by a double edged (elliptical) weapon. It is also required to be noted that out of nine injuries, eight injuries are said to have been possible by way of double edged weapon. In that view of the matter, the prosecution has not been able to prove that the muddamal knife was used in the alleged offence. The case of the prosecution is not supported by the medical evidence. 13. Moreover, the doctor at Harij hospital had examined the deceased and he found only three injuries on the body of deceased which has been reflected in the medical certificate issued by Dr. Parbhatbhai Patel, P.W. 1 vide Ex. 23. In the said certificate, P.W. 1 has stated three injuries - one above abdominal region on epigastria, second on left side lumbar region and third on the right side lumbar region. According to the said certificate, first two injuries were cut wounds whereas third injury was piercing one. Now, if we peruse the evidence of P.W. 2 - the doctor who performed post mortem, 9 injuries are stated to have been found on the body of deceased. According to the said certificate, first two injuries were cut wounds whereas third injury was piercing one. Now, if we peruse the evidence of P.W. 2 - the doctor who performed post mortem, 9 injuries are stated to have been found on the body of deceased. Moreover, some of the injuries found on the body of deceased as per the post mortem report are said to be on the part which is covered by pant. However, not a single cut is found or mentioned in the panchnama and/or the pant seized by the police. 14. It is the case of the prosecution in the form of ocular evidence that the deceased fell down after he was attacked by accused persons at the place of offence and then he was taken to hospital in a jeep. It is not the case of the prosecution that the deceased had tried to run away from the scene of offence. No witness has stated so in his evidence. Moreover, it is also the case of the prosecution that no person other than the deceased was injured in the said incident. Therefore, we find the presence of blood at two places at a distance of about 30 feet from each a great anomaly in the evidence of the prosecution. The jeep driver has not been examined by the prosecution. No panchnama of the jeep was prepared by the prosecution. There ought to have been blood stains in the jeep which has not been collected by the police and/or not proved by the prosecution. The prosecution has not been able to throw any light on the said aspect. 15. We would also like to mention that the clothes worn by the deceased as well as the blood collected from the place of offence were sent to FSL. From the FSL reports at Ex. 80 to 84, it is clear that the blood group of deceased was 'B' whereas the blood found on the clothes of the deceased was of 'AB' group and the blood found at the scene of offence was also 'AB' group. Moreover, the blood found from the clothes of the complainant was also of 'AB' group. The prosecution is not in a position to explain the said anomaly. 16. Moreover, the blood found from the clothes of the complainant was also of 'AB' group. The prosecution is not in a position to explain the said anomaly. 16. The names of none of the accused is reflected neither in the history given before the doctors at Harij hospital nor in the Patan Civil Hospital. It is the case of the prosecution that the eye witnesses had accompanied the deceased to the hospital but still the names of the accused have not been mentioned in the history recorded. When the so called eye witnesses had taken the deceased to the hospital they could have very well given the names of the accused persons. The body of the deceased has been identified by his brother. The brother of deceased having been informed and how and when he reached the hospital is not borne out from the evidence of any of the witnesses. 17. Moreover, the first information report was written down by P.W. 13. This witness vide Ex. 69 does not say at what time and at what place the said FIR was written. He has stated that he went of Civil Hospital, Patan on the basis of telephonic information received from the hospital buy the entry regarding the said telephonic information in the register of Patan City Police Station is not produced on the record of the case. Moreover, there is no entry in Ex. 72 about any wireless message being received from Harij Police Station. 18. Considering all the aforesaid contradictions and discrepancies, we are of the view that the learned advocate for the appellants has successfully created a doubt regarding the veracity of the case of prosecution. There is no clinching evidence which points a finger directly at the accused. We clarify that though the court strongly feels that the accused may have committed the alleged offence, in absence of any clinching evidence to prove their guilt, we are required to grant benefit of doubt to the accused. This court is not exonerating the accused of the charges but only because the prosecution has not been able to adduce sufficient evidence to nail the accused, benefit of doubt is being granted to the accused. 19. For the foregoing reasons, Criminal Appeal No. 304 of 2007 is allowed. This court is not exonerating the accused of the charges but only because the prosecution has not been able to adduce sufficient evidence to nail the accused, benefit of doubt is being granted to the accused. 19. For the foregoing reasons, Criminal Appeal No. 304 of 2007 is allowed. The order of conviction and sentence dated 16.01.2007 arising from Special Atrocity Case No. 22 of 2005 passed by the Special Judge, Fast Track Court No. 2, Patan under Section 302 r/w 34 of Indian Penal Code is quashed and set aside qua original accused No. 1 to 4. The appellants - original accused No. 1 to 4 are acquitted of the charges levelled against them under Section 302 r/w 34 of Indian Penal Code giving benefit of doubt. Since they are on bail, their bail bond shall stand cancelled. 20. Criminal Appeal No. 1861 of 2008 is dismissed. The judgement and order dated 02.04.2008 passed by the Special Judge, Patan in Special Atrocity Case No. 08 of 2007 is confirmed. Bail bond shall stand cancelled. R & P of both the matters to be sent to the trial court forthwith.