JUDGMENT : B.N. KARIA, J. The present Appeal preferred by the State of Gujarat under Section 378 of the Code of Criminal Procedure is directed against the judgment and order of acquittal dated 30th August 1994 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 5 of 1993 recording acquittal of the respondent-Kantibhai Khetabhai Harijan of the offence punishable under Section 302 & 324 of the Indian Penal Code read with Section 135 of the Bombay Police Act. 2. Brief facts necessary for the disposal of this case are that the complainant Ranchhodbhai Parmabhai Harijan Bhangi resides at Chadiyana, Taluka: Santalpur and earns his bread by doing labour work. The complainant has three brothers, wherein the complainant is the eldest and Shankar is younger than him, and Ganesh is younger than the former. Shankar has been living with his family at Sundarpuri, Gandhidham for the last ten years and Ganesh serves as a sweeper in the military at Vadodara. Brother of the complainant-Shankar lives at Sundarpuri, Gandhidham and the accused of this case Harijan Bhangi Kanti Kheta of Bholot village Taluka-Radhanpur also lives at Gandhidham. Therefore, Manju, daughter of the brother of the complainant Shankar and the accused Kanti Kheta had illicit relations. Before 10 months of lodging the complaint, brother of the complainant Shankarbhai came from Gandhidham and met complainant and discussed about illicit relations between Manju and the accused. He told him to keep Manju with him, and therefore the complainant went to Gandhidham and brought his niece Manju and kept her in his house. Thereafter, the accused Kanti Kheta arrived at complaints home to meet Manju, but seeing the complainant, he left without meeting Manju. The complainant telegraphed his brother and called him at his home and told that the accused Kanti Kheta use to frequently visit his home to meet Manju and therefore he apprehends that he [Kanti Kheta] may kidnap Manju, and therefore, we should gather the people of our community and keep a watch. Thereafter, complainant called the persons of his community at his home mainly; Harijan Bhangi Chaman Gulab, residing at Radhanpur; Mapha Magha; Mapha Okha; Mana Sava and Lavji Ghuda, etc,. The complainant and his brother told them that the accused Kanti Kheta frequently comes to meet their daughter Manju and does not obey them, so please make arrangements for him. Thereafter, complainant called the persons of his community at his home mainly; Harijan Bhangi Chaman Gulab, residing at Radhanpur; Mapha Magha; Mapha Okha; Mana Sava and Lavji Ghuda, etc,. The complainant and his brother told them that the accused Kanti Kheta frequently comes to meet their daughter Manju and does not obey them, so please make arrangements for him. Therefore, the leaders made an arrangement and prepared a written document that Kanti Kheta shall not come to meet daughter of Shankarbhai. Thereafter, they got daughter of the complainant Manju married with Harijan Bhangi Jetha Chhagan of Vanod village in the Ashadh month before lodging of the complaint. At the time of incident, Manju was at complainant's home. 3. On 19th September 2002, after taking dinner, the complainant and his wife Mena, their son Paso and his niece Manju were sleeping in the verandas of their house. On that night, at about 01:00 hours, niece of the complainant Manju shouted as ‘Save….Save’, therefore the complainant and his wife Menaben suddenly woke up and saw that the accused Kanti Kheta was armed with a knife. Therefore, the complainant ran and went towards the accused Kanti. The accused inflicted knife blow on the left hand wrist of the complainant and as the complainant was injured, he fell down and sustained injury on his legs and at that time, accused Kanti fled away from the scene of occurrence. Thereafter, when the complainant saw his niece Manju, she was lying profusely bleeding near the cot. Therefore, as the complainant began to shout, the witnesses Thakor Hirabhai Vajabhai; Thakor Karshanbhai Rugnathbhai; Thakor Pababhai Ambabhai and Thakor Chothabhai Nagjibhai etc, arrived. When the complainant asked his niece Manju, she said that when she was sleeping in the cot, accused Kanti Kheta came near her and awaken her and told her to join him, but as she denied to accompany him, the accused Kanti Kheta got provoked and gave knife blows in her stomach. Thereafter, immediately Manju died. The complainant and above mentioned four witnesses hired a jeep and went to Varahi Police Station to lodge a complaint. When the complaint of the above incident was given by the complainant at Varahi Police Station before PSI Mr. M.N Trivedi, he made his writer HC Karshanbhai to jot down the same, as per the complainant's version. The complainant and above mentioned four witnesses hired a jeep and went to Varahi Police Station to lodge a complaint. When the complaint of the above incident was given by the complainant at Varahi Police Station before PSI Mr. M.N Trivedi, he made his writer HC Karshanbhai to jot down the same, as per the complainant's version. Thereafter, he registered the offence with Varahi Police Son vide I - C.R No. 77/92 and took over investigation. PSI Mr. Trivedi drew a panchnama of the place of offence. He also drew Inquest panchnama of the dead body. Blood smeared soil and control soil were seized from the place of offence. A Yadi was made to Radhanpur Medical Officer for postmortem examination of the dead body. After preparing police yadi, the complainant was sent to Radhanpur Community Health Center for medical treatment. The clothes on the dead body were recovered from PSO Khemabhai, after drawing a detailed panchnama. Statements of the concerned witnesses were recorded. After arresting the accused, a panchnama of his physical condition was drawn and clothes of the same were seized. On producing knife used in the offence, after seizing it from the accused's residential house, it was seized after drawing the panchnama. A report was submitted to Mamlatdar for preparing a sketch of the place of offence. PSI Mr. Trivedi sent blood smeared soil, control soil, knife, blouse, upper garment, petticoat and shirt to the Forensic Science Laboratory for analysis. 4. After completing regular investigation and finding sufficient evidence against the accused, the charge-sheet was produced before the Court of Judicial Magistrate, First Class, Radhanpur on 24th November 1992 against the present accused under Section 302 of Indian Penal Code and Section 135 of the Bombay Police Act by Varahi Police Station, which was registered as Criminal Case No. 1368/92. As he was not empowered to try offence punishable under section 302 IPC, Mr. R.M Morzana, the then Learned Judicial Magistrate, First Class, Radhanpur committed the case to the Sessions Court, as per Section 209 CrPC vide committal order dated 4th December 1992. The said case was registered as Sessions Case No. 05/93 and tried by the learned Additional Sessions Judge, Banaskantha at Palanpur, on the respondent-accused pleading not guilty to the charge against him. 5. To prove charge against the respondent-accused, the prosecution examined in all 11 witness, whose details are given below. The said case was registered as Sessions Case No. 05/93 and tried by the learned Additional Sessions Judge, Banaskantha at Palanpur, on the respondent-accused pleading not guilty to the charge against him. 5. To prove charge against the respondent-accused, the prosecution examined in all 11 witness, whose details are given below. Witness No. Description Exhibit No. 1 Medical Officer, Rajendrakumar Surajmal Gupta 1 2 Medical Officer, Amrutlal Vorabhai Patel 13 3 Complainant, Ranchhodbhai Parmabhai 24 4 Menaben Vanabhai 25 5 Jummabhai Osmanbhai 26 6 Kaliben Govindbhai 27 7 Chothabhai Nagjibhai 29 8 Chaman Gulab Bhangi 30 9 Sardarkhan Karimkhan Malik 32 10 Raimalji Jemalji Malek 35 11 IO, PSI Madhusudan Nagarlal Trivedi 37 6. Following documentary evidence was produced by the prosecution to establish the guilt of the accused before the trial Court: Sr. No. Description Exhibit No. 1 Police Yadi 11 and 14 2 Postmortem Note 12 3 Medical Certificate of the accused 15 4 Inquest Panchnama 16 5 Panchnama of the place of offence 17 6 Panchnama of the clothes on the dead-body 18 7 Panchanama of the personal search 19 8 Map of the place of offence 20 9 Original statement of compromise done before the community 31 10 Panchanama of the physical condition of the accused. 33 11 Panchanama regarding weapon discovery 34 12 Complainant 38 13 O/c of Yadi written to Medical officer, Radhanpur 39 14 Dispatch entry 40 15 F.S.L forwarding letter with examination report 41 16 F.S.L examination report 42 17 F.S.L serological report 43 7. Further statement of the accused came to be recorded as per the provision of Section 313 CrPC, after a declaration by the prosecution regarding completion of the evidence through a pursish vide Exhibit 44. In that statement, the accused stated that a false case had been filed against him and he knew nothing about this incident. The accused has not examined himself as a witness in this case and he has not produced evidence for defense. 8. Heard learned Additional Public Prosecutor Ms. Jirga Jhaveri appearing on behalf of the appellant-State and Mr. Pratik B Barot, learned advocate appearing on behalf of the Opponent. 9. Assailing the judgment and order of acquittal, which is impugned in the present Appeal, learned Additional Public Prosecutor Ms. 8. Heard learned Additional Public Prosecutor Ms. Jirga Jhaveri appearing on behalf of the appellant-State and Mr. Pratik B Barot, learned advocate appearing on behalf of the Opponent. 9. Assailing the judgment and order of acquittal, which is impugned in the present Appeal, learned Additional Public Prosecutor Ms. Jirga Jhaveri appearing on behalf of the appellant-State contended that the complainant and his wife Menaben are eye-witnesses of the occurrence which took place on 29th September 1992 at about 1:00 am in the premises of the complainant, where the accused is alleged to have assaulted his niece-Manju with a knife and thereby causing her grievous injuries. That, the oral evidence given by both the eye witnesses duly support the medical evidence. That the postmortem note and injuries shown therein at serial number 17 also supports ocular evidence of the complainant and his wife. That, oral dying declaration was made by the deceased before four witnesses, however, the trial Court has discarded the said aspect. That, considering the injuries sustained by the deceased and the opinion given by the Medical Officer, it clearly establishes that the death of deceased Manju was homicidal due to assault with a knife That, the oral dying declaration made by the deceased cannot be discarded or ignored by the Court below. That, the Medical Officer who examined the deceased and medically treated the complainant-injured was examined by the prosecution as a prosecution witness. That, the discovery panchnama was prepared at the instance of accused and a knife was recovered by the Investigating Officer, which is clearly proved by the deposition of the I.O That, the blood stains were found from the clothes of the deceased as well as shirt of the accused. That, the scientific evidence available with prosecution proves matching of blood group with blood stains found on the clothes of the deceased. That, deposition of PW-7 Chothabhai Nagjibhai could not have been discarded by the trial Court as he being an independent witness before whom also, oral dying declaration was made by the deceased Manjuben. That, this witness Chothabhai is a neighbour of the complainant. That, he is a reliable and trustworthy witness however, the trial Court committed an error in not accepting his deposition. That, the complainant know the accused, as he met him previously to convince him not to meet his niece any further. That, this witness Chothabhai is a neighbour of the complainant. That, he is a reliable and trustworthy witness however, the trial Court committed an error in not accepting his deposition. That, the complainant know the accused, as he met him previously to convince him not to meet his niece any further. That, in the light of lantern, incident was witnessed by the complainant and his wife of inflicting knife blow on the deceased at the hands of the opponent-accused. Therefore, prosecution has clearly produced sufficient evidence against the present opponent-accused and successfully established the case. Hence, it was requested by Ms. Jirga Jhaveri, learned Additional Public Prosecutor appearing for the State to allow this Appeal and thereby quash and set-aside the impugned judgment and order dated 30th August 1994 passed by the learned Addl. Sessions Judge, Banaskatha at Palanpur in Sessions Case No. 5 of 1993. 10. Per contra, learned advocate Shri Pratik Barot appearing on behalf of the respondent contended that the prosecution has failed to establish that the deceased-Manjuben was in a fit condition to make any oral dying declaration or for that matter, she did make oral dying declaration before the complainant and his wife. He also contended that the evidence of the complainant and his wife, and Chothabhai Nagjibhai who have stated before the Court that they had heard deceased naming the accused cannot be believed because this witness have made improvements in their version as to the dying declaration as well as inflicting of knife blow by the accused because in their first statement recorded by the Investigating Officer under Section 161 CrPC, they did not make any such statement regarding their having heard any declaration made by the injured and/or inflicting of the blow with a knife to the deceased. He also contended that the so-called human blood found on the shirt of opponent-accused cannot be relied because while preparing panchnama of recovery of the shirt, there is no mention with respect of presence of any blood stains on it. It is further contended by the learned advocate that the prosecution has never ascertained the blood stains of the complainant who also sustained injuries in the occurrence as well as that of the accused, during the investigation. That, the alleged knife used in the incident was not recovered at the instance of the accused. It is further contended by the learned advocate that the prosecution has never ascertained the blood stains of the complainant who also sustained injuries in the occurrence as well as that of the accused, during the investigation. That, the alleged knife used in the incident was not recovered at the instance of the accused. That, there was no sufficient light available in the premises to identify the accused at the place of incident. That, the complainant as well as his wife-Menaben were not in a position to clearly identify the accused inflicting knife blows on the niece of the complainant. That, the distance of Lantern was 15 feet from the place of the occurrence, as stated by the witnesses and it was burning dim and therefore, none of the witnesses were in a position to see the face of the accused. There is improvement in the version of the complainant as well as his wife in respect of inflicting knife blows to the deceased by the accused. In fact, the complainant was not knowing or had ever seen the accused at the place of offence inflicting knife blows to his niece. That, none of the witnesses examined by the prosecution are trustworthy or reliable, and therefore, their evidence was rightly not accepted by the trial Court. That, vide Exh. 33-Panchanama of the recovery of shirt and Pant of the accused and vide Exh. 34-Discovery Panchnama depicting recovery of knife allegedly used in the offence were produced on record by the prosecution. That, no visible blood stains were found either on shirt at the time of its recovery, or it the blood group of the deceased is found matching with the one allegedly found on the shirt of the accused, in absence of the blood group of the complainant and as that of the accused, the accused cannot be held liable for the offence. On this issue, Shri Pratik Barot, learned advocate appearing on behalf of the respondent placed reliance upon a decision of the Apex Court rendered in the case of Khalil Khan v. State of Madhya Pradesh, reported in (2003) 11 SCC 19 to contend that the incident took place on 20th September 1992 and the panchnama of recovery of clothes of the accused was drawn on 23rd September 1992. That, as per the report, sample No. F & G appears to be Shirt and Pant of the accused. That, as per the report, sample No. F & G appears to be Shirt and Pant of the accused. That, no blood stains were found on the Pant recovered under the said panchnama, while blood stains were found on the shirt of the accused having AB group. There is nothing on the record as to whose blood group “AB” was. That, the blood group of the accused, the deceased and even the complainant who allegedly sustained minor injury on his hand was not determined at all by the prosecution during the course of investigation, and therefore, it cannot be used against the accused. That, discovery of knife is not an incriminating circumstance against the accused. That, vide Exh. 32, one of the panch witnesses Sardarkhan Karimkhan Mallik was examined by the prosecution. Considering his deposition, a question would certainly arise whether he was actually present at the time of drawing seizure panchanama, or before this witness a ready made shirt was placed describing it to be of the accused. That, no arrest panchnama was produced on the record before the trial Court and only panchanama in respect of physical condition of the accused was placed on the record and therefore, another question would arise whether the accused would roam around for three days to save his arrest, wearing the same clothes? It is nowhere proved that the shirt seized by the Police was that of the accused. That, description of knife was given by the prosecution, but panch witness who was examined by the prosecution has no idea of length and width of the knife [described as “Chappa”] and therefore, such evidence loses its evidentiary value and was rightly not reliable. That, the panch witness has only seen the accused entering into his house and coming out of the house and the said panch witness was stopped at Ordi [compound] and did not accompany accused inside the house where allegedly knife was recovered at the instance of the accused. That, no blood stains were found on the knife recovered by the prosecution. 11. At this stage, Shri Pratik Barot, learned advocate for the opponent-accused has placed reliance upon a decision of the Apex Court in the case of Debapriya Pal v. State of West Bengal, reported in AIR 2017 SC 1246 to contend that the prosecution has failed to prove direct motive of the accused for murdering the deceased-Manju. 11. At this stage, Shri Pratik Barot, learned advocate for the opponent-accused has placed reliance upon a decision of the Apex Court in the case of Debapriya Pal v. State of West Bengal, reported in AIR 2017 SC 1246 to contend that the prosecution has failed to prove direct motive of the accused for murdering the deceased-Manju. That, in fact, whether it was a one-sided love affair or not, still remains unanswered issue. 12. That, before three months of the occurrence, deceased got married with someone else and she stayed there for about five days only and returned back at the house of the complainant. That, she had some relation with the accused in the year 1992, and if such relation was still in existence, naturally father and other family members would have been disturbed. It is nowhere stated by the complainant that he had seen accused twice earlier, when he came to meet his niece - deceased Manjuben. That, previously one meeting was arranged at Radhanpur between the complainant and the accused and thereafter on the day of incident, it is alleged that the complainant met with the accused. That, the accused was resident of Sundarpuri, near Gandhidham while the place of incident is Chadiyana, Taluka: Santalpur which is 200 kilometers away from Sundarpuri. No evidence is available with the prosecution as to when the accused came from Sundarpuri, Gandhidham to Chadiyana, Taluka: Santalpur. No evidence is available with the prosecution as to when the accused came at the place of incident from Sundarpuri. In the complaint, it is stated that all the family members were sleeping in Osri. That, the map of the place of incident has been produced on the record. That, in the complaint, it is stated that all the family members were sleeping in Osri. When the complainant heard the shouts “..help …help…” of Manjuben, he and his wife Menaben went towards her bed. The complainant could not witness injuries being sustained by the deceased at the hands of the accused, though there is no much distance between chowk and osri. He was also not in a position to identify the accused under the shedding light of lantern. That, four people of the village Chadiyana namely, Thakor Hirbhai Vajabhai, Thakor Karshanbhai Ruganathbhai, Thakor Pabatbhai Ambabhai and Thakor Chothabhai Nagjibhai were not examined by the prosecution, though they reached at the place of incident immediately. He was also not in a position to identify the accused under the shedding light of lantern. That, four people of the village Chadiyana namely, Thakor Hirbhai Vajabhai, Thakor Karshanbhai Ruganathbhai, Thakor Pabatbhai Ambabhai and Thakor Chothabhai Nagjibhai were not examined by the prosecution, though they reached at the place of incident immediately. That, in the panchnama of the scene of offence, there is no mention of lantern. That, complainant in his deposition before the Court has stated that he was sleeping in chowk i.e., outside Osri and his son was sleeping adjacent to him. That, lantern was hanging with a rope and it was tied to a stick on the door at a distance of 15 feet away from chowk. In fact, there was no lantern found handing on the door. That, the distance of sleeping place of the complainant was far from the place of the incident, and therefore, benefit of doubt has rightly been given to the accused by the Court below. Learned advocate for the respondent-accused further submitted that the evidence of Menaben is not trustworthy and/or inspires any confidence. That in the complaint also, it is nowhere stated by the complainant that lantern was hanging on door and in the shedding light, he could see the accused. That, the mattress on which alleged incident took place was not seized during the course of investigation. That, no illegality is committed by the trial Court in acquitting the accused, and hence, it was requested to dismiss the Appeal, confirming the impugned judgment and order dated 30th August 1994 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 5 of 1993. 13. That in an appeal against acquittal filed under Section 378 of the Code, 1973, as such there is no limitation on the Appellate Court to review the evidence. But at the same time, if on fact as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and when findings of that trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. But at the same time, if on fact as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and when findings of that trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. When acquittal is based on the surmises and conjectures and not substantiated by law and evidence on record, an Appellate Court may re-appreciate and review the entire evidence to see that undue benefit is not given to the accused. Now, it is well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, substituting its own views by the High Court is not permissible. That in case of acquittal, it is to be borne into mind by the Appellate Court that there is double presumption in favour of the accused that firstly, presumption of innocence in favour of a guilty on the premise that every person should be presumed to be innocent unless he is proved to be guilty by the Court of Law, and secondly, when accused secures an acquittal, such presumption of innocence is reinforced and reaffirmed by the trial Court. That it is further well settled that even if two views are possible in an appeal against acquittal, the views taken by the trial Court if one of the possible views, then the view which favours the acquittal is to be not disturbed or interfered with. 14. Having regard to the submissions made by learned counsel for the parties and on perusal of record of the case, we find that the judgment and order of acquittal under challenge cannot be sustained by applying principles and criterion of appreciation of evidence, which surfaced on the record. PW-3 Ranchhodbhai Parmabhai is uncle of the deceased-Manjuben. 15. As per the prosecution case, the complainant himself and his wife Menaben were present at the time of offence and they had seen the entire incident in the light of lantern. Both of them in their depositions before the Court have admitted of lantern shedding dim light. As per the testimony of complainant, lantern was hanging on the door at a distance of 15 feet. Both of them in their depositions before the Court have admitted of lantern shedding dim light. As per the testimony of complainant, lantern was hanging on the door at a distance of 15 feet. While his wife Menaben says nothing in respect of lantern hanging on the door in her examination-in-chief. It appears that in the cross examination, it is stated that lantern was lying at some distance from the cot and it was hanging with a rope, tied to the stick. 16. Surprisingly, the complainant in his compliant which came to be recorded by him immediately after the incident, has never stated that the accused was seen by him in the light of a lantern, or it was shedding dim light. It transpires from the panchnama of the scene of offence at Exh. 17 that nowhere, it is stated in respect of a lantern existence at the scene of incident, as deposed by the complainant or his wife in their examination before the Court. More surprisingly, the Investigation Officer has not seized any lantern during the entire investigation, and therefore, it would be very difficult to rely upon the testimony of both the witnesses i.e., Ranchhodbhai and his wife Menaben that they have seen the accused in the light of lantern. Thus, presence of lantern or identifying the accused in the light of lantern hanging at a distance of 15 ft. from the place of incident is completely making the prosecution case doubtful. It is the prime duty of the prosecution to prove identity of the accused without reasonable doubt. 17. As per the prosecution case, deceased Manju in presence of the complainant, his wife Menaben and other four persons of the same village Chadiyana viz., Thakor Hirbhai Vajabhai, Thakor Karshanbhai Ruganathbhai, Thakore Pababhai Ambabhai and Thakor Chotabhai Nagjibhai made a declaration that when she was asleep in the cot, Kanti Kheda came there and awoke her, asking to join him. As she denied, the accused suddenly got instigated and inflicted knife blow in her stomach. Thereafter, immediately Manjuben died. Thus, as per prosecution story, Manuben gave oral dying declaration before these six witnesses. Now, the physical condition of the deceased at the time of her giving oral dying declaration, would be required to be considered. As she denied, the accused suddenly got instigated and inflicted knife blow in her stomach. Thereafter, immediately Manjuben died. Thus, as per prosecution story, Manuben gave oral dying declaration before these six witnesses. Now, the physical condition of the deceased at the time of her giving oral dying declaration, would be required to be considered. The Doctor who performed the postmortem examination has clearly stated that if any person is caused such a grievous injury, then the fact as to whether he/she immediately goes unconscious would depend upon the quantity of blood being oozed out of the injury. He has also stated that the person who sustains such injury may not even be able to speak even anything. Therefore, the evidence of the complainant and his wife on this issue does not inspire confidence. Further, it appears that the prosecution has examined only one witness i.e., PW-7 Chothabhai Nagjibhai at Exh. 29, leaving others who allegedly were present at the time of oral dying declaration given by the deceased Manjuben. Now, this witness Chotabhai in his testimony states that his house is located 200 ft. on the northern side of the house of complainant-Ranchhodbhai. On the day of incident at about 1:00 am he heard shouts “…help …help..” of Manjuben and therefore, he rushed towards the house of Ranchhodbhai and by the time he reached there, Hira Vaja, Karshan Ragnath and Parbhat Amba also arrived there. When they went inside, Manjuben was lying on the floor below cot, and Ranchhodbhai and his wife were present nearby Majuben was bleeding from below the chin and right side of her body. On inquiring Manjuben as to what happened to her and as to who inflicted injuries, she replied that Kanti Kheta had inflicted knife blows to her. It is further deposed by this witness that the deceased Manju also told that Kanti Kheta asked her to go with him and when she refused to join, he inflicted knife blows on her. It has come on record that the complainant was working with the above witness-Chothabhai Nagjibhai and therefore, he appears to be an interested witness. There is some contradiction in respect of stay of Majuben at the house of the complainant. As per the statement of the complainant, deceased was staying with him before 10 months of the incident. It has come on record that the complainant was working with the above witness-Chothabhai Nagjibhai and therefore, he appears to be an interested witness. There is some contradiction in respect of stay of Majuben at the house of the complainant. As per the statement of the complainant, deceased was staying with him before 10 months of the incident. While as per the deposition of PW-7 Chothabhai Nagjibhai, she was staying with the complainant since last one month. From deposition of PW-Chaman Gulabbhai, PW-7 Chothabhai was also present in a meeting held at Radhanpur, and whereas, this witness denies of his presence at Radhanpur. Complainant himself has stated that PW-7 Chothabhai Nagjibhai was present at Radhanpur. He also accompanied the complainant while lodging the complaint and as per the statement of the complainant, his statement was recorded by the Police. The investigating Officer says that he had never recorded any statement of witness named Chothabhai Nagjibhai at the Police Station, but his statement was recorded afterwards at village Chaniyana. While this witness Chotha Nagji says that after lodging a complaint before the Police, he had never met the police. Under the circumstances, no reliance can be placed on the oral dying declaration given by the deceased before this witness. 18. Prosecution has examined two panch witnesses to prove recovery of weapon-knife vide Exhs. 33 & 34 viz., Sardarkhan Karimkhan and Raymalji Jemalji Malek. 19. It appears from the record that PW-10 Raimalji Jemalji Malek turned hostile, while PW-9 Sardarkhan Karimkhan in his cross examination at Exh. 32 has stated that when he visited the clothes were lying there and panchnama was prepared, on which is signature was only taken. It is further stated that they were standing at a distance of some 10 to 15 fts away from the house of the accused and they did not enter into his house for the purpose of any seizure. The Police officers entered into the house of the accused and came back alongwith the accused with a knife. Therefore, it is difficult to accept the version of the prosecution that the knife was voluntarily produced by the accused. It is true that from the shift of the accused, blood group “AB” was found, but there is nothing on the record that the above shirt was of the accused. Therefore, it is difficult to accept the version of the prosecution that the knife was voluntarily produced by the accused. It is true that from the shift of the accused, blood group “AB” was found, but there is nothing on the record that the above shirt was of the accused. Further, no documents were produced by the prosecution in respect of the blood group of the accused or the complainant, and therefore, it would be difficult to accept the case of the prosecution that whatever blood group was found from the shirt would be sufficient evidence to connect the accused with the offence. The accused had also received some injury in the said incident, but without any evidence, it cannot be said that the said injury was sustained in the said incident because in the panchnama prepared of the physical condition of the accused on 23rd September 1992, it is noted that there was some injury on the thumb of left hand which was fresh in nature, but he was not referred to any Doctor for treatment. The accused was produced before the learned Magistrate on 24th September 1992 and remand was sought for by the prosecution. He was brought before the Medical Officer on 25th September 1992 and therefore, it would be difficult to accept the case of the prosecution that he had also sustain some injuries with the knife. The shirt of the accused with blood stains was seized by the Investigating Agency on 23rd September 1992 i.e., two days after the incident which occurred on 20th September 1992. Nobody would wear the same shirt for two days and that too after the alleged incident, and therefore, the prosecution case appears to be doubtful. In the case of Debapriya Pal v. State of West Bengal, reported in AIR 2017 SC 1246 , the clothes and laptop of deceased were seized from the accused. Blood was detected on the clothes recovered at the instance of accused and on bed sheet at the spot were found matching. In this case, blood group of the accused and deceased were not ascertained by the investigating agency. The Hon'ble Supreme Court held that the matching blood groups on recovered clothes and bed sheet by itself cannot be proof of involvement of accused. In this case, blood group of the accused and deceased were not ascertained by the investigating agency. The Hon'ble Supreme Court held that the matching blood groups on recovered clothes and bed sheet by itself cannot be proof of involvement of accused. The Apex Court observed that the laptop belonging to sister of the deceased recovered at the instance of accused cannot as such has any direct bearing on the murder, as it was not sufficient to establish guilt/against the accused. Here also, the prosecution has never ascertained the blood group of the deceased as well as that of the accused during the course of investigation, and therefore, matching of the blood group on recovered shirt of the accused cannot be a proof of his involvement in the offence. 20. In the case of Prakash v. State of Karnataka, reported in (2014) 12 SCC 133 , the Apex Court has held that mere recovery of blood stained clothes of convict and ornaments of deceased were not sufficiently establishing guilt of the appellant therein. Here also, in the instant case, as observed earlier, the blood group “AB” was found on the shirt of the accused, but no proof of ownership of the shift is produced on the record. 21. In the case of Khalil Khan v. State of Madhya Pradesh, reported in (2003) 11 SCC 19 , the Apex Court held that the important fact that the deceased did make a statement implicating the appellant as the assailant, which was not make to Investigating Officer, when their statements were first recorded. Their stating for the first time before the Court this fact raises some doubts as to the veracity of the said fact. Taking into consideration the nature of injuries suffered and the prosecution evidence itself that the deceased while being taken to the hospital had become unconscious, it is not safe to rely upon the evidence of these witnesses who have made this important statement as to the dying declaration for the first time before the Court. Here also, seeing the accused in the light of lantern by the complainant and his wife who had never declared in the complaint and for the first time, they have stated contrary to each other regarding the presence of lantern lying or tied on a rope over the door, at a distance from the place of offence. Here also, seeing the accused in the light of lantern by the complainant and his wife who had never declared in the complaint and for the first time, they have stated contrary to each other regarding the presence of lantern lying or tied on a rope over the door, at a distance from the place of offence. From the complaint itself, it can be said that he had seen the accused inflicting five injuries on deceased Manjuben with a knife. No question of Menaben seeing the accused causing injuries to the deceased Manjuben arise. They are interested witnesses, being uncle and aunt of the deceased. Further, even the deceased was not in a fit condition to speak anything after sustaining such grievous injuries, as opined by the Doctor, and therefore, the oral dying declaration allegedly made before these witnesses would not inspire any confidence. Out of four witnesses, only Chothabhai Nagjibhai was examined by the prosecution, and he too appears to be related and interested witness. Voluntary recovery of knife at the instance of the accused was not established by the prosecution at the trial. Therefore, we think it not safe to rely upon the evidence of these witnesses who have made important statement as to the dying declaration for the first time before the trial Court. While holding so, we have borne in our mind the fact that complainant-Ranchhodbhai, his wife Menaben and Chothabhai are very closely related to the deceased Manjuben. Since, in our considered opinion, the prosecution case in regard to dying declaration and also the recovery of knife is not beyond reasonable doubt, hence, the benefit of doubt has reasonably gone in favour of the respondent-accused. 22. For the aforegoing reasons, this Appeal fails and the same is dismissed. The impugned judgment and order of acquittal dated 30th August 1994 passed by the learned Additional Sessions Judge Banaskantha at Palanpur in Sessions Case No. 5 of 1993 recording acquittal of the respondent-Kantibhai Khetabhai Harijan of the offence punishable under Section 302 & 324 of the Indian Penal Code read with Section 135 of the Bombay Police Act stands confirmed. Bail bond stands cancelled. 23. Registry to transmit R&P back to the Court concerned.