JUDGMENT : B.N. KARIA, J. 1. By means of filing this Appeal under Section 374 of the Code of Criminal Procedure, 1973 (Cr.PC for brevity) the appellant has challenged the judgment and order dated 28.02.2002 passed by learned Additional Sessions Judge, Surendranagar in Special Sessions Case No. 89 of 1997, whereby, the appellant-original accused has been ordered to undergo rigorous imprisonment of three years and to pay fine of Rs. 5000/- and in default thereof, to undergo one year simple imprisonment for an offence punishable under Section 326 of the Indian Penal Code and ordered to undergo one year rigorous imprisonment and to pay fine of Rs. 1000/- and in default thereof, to undergo four months simple imprisonment for an offence punishable under Section 324 of the Indian Penal Code as well as ordered to undergo four months rigorous imprisonment and to pay fine of Rs. 500/- and in default thereof, to undergo two months simple imprisonment for an offence punishable under Section 135 of the Bombay Police Act. All the sentences are ordered to run concurrently. 2. The facts, as emerging from the record, are stated thus: That, on 26.03.1997, as per direction of Shri Barot, an advocate of Viramgam, the complainant had gone to the court of Surendranagar for collecting copies of the bail application of Munna and other accused arrested in a murder case of one Hathubha. At that time, Amathubhai Kukabhai, maternal uncle of the complainant was with him and when they were leaving the court compound, at about 2.00 o’clock, with their cycle, one boy aged about 30 years rushed with a knife and gave knife blows wherein, the complainant got one wound on the right thigh and two wounds on the right side which resulted into falling down of the complainant. Immediately, Amthubhai took him in an auto rickshaw to CJ Hospital for medical treatment. The complainant knew the person who had given him knife blows, here he belongs to and the reason behind such assault. Immediately, Amthubhai took him in an auto rickshaw to CJ Hospital for medical treatment. The complainant knew the person who had given him knife blows, here he belongs to and the reason behind such assault. According to the complainant, there was a long standing enmity going on between the complainant and Darbar community of the village, and on 17.02.1997, murder of one member of Darbar community namely Hathubhai Vijaysinh was caused, wherein, charge was levelled against brothers of the complainant Bachu and Karshan and keeping grudge, one member of Darbar community namely Surubha of the said village assigned knife to one person to commit his murder, or get him assaulted. The complainant certainly assets that this unknown person who assaulted him with knife can be identified after seeing him because the assault with knife was made with an intention to commit murder and/or cause grievous injuries to the complainant. Upon production of the accused and ascertaining from him as to whether he had received copy of the case papers, he replied in the affirmative and thereafter, the charge was framed against the accused person which was read over and explained to him, wherein he did not plead guilty and claimed to be tried. Accordingly, the prosecution laid evidence. 3. In the trial held, 13 witnesses were examined by the prosecution, enlisted hereunder:- S. No. PW No. Name Exhibit 1 1 Complainant-Shankarbhai Bhagwanbhai 6 2 2 Witness-Takhuben Bhagwanbhai 7 3 3 Witness-Amthubhai Kukabhai 8 4 4 Witness-Ikbalbhai Valliyuddin Desai (Executive Magistrate) 9 5 5 Witness-Shamjibhai Virjibhai 12 6 6 Witness-Jitendrasinh Harisinh Rathod 13 7 7 Panch witness-Dhanjibhai Maganbhai 17 8 8 Police Head Constable- Jayendrasinh Jilubha Parmar 18 9 9 Panch witness-Jilubhai Motibhai Gohil 20 10 10 Doctor Salil Pravinchandra Kharod 22 11 11 Panch witness-Kanubhai narayanbhai Palaniya 24 12 12 Panch witness-Viresh Navinchandra Sanghavi 27 13 13 Police Inspector-Bhavanji Danabhai Rabari (Investigating Officer) 28 4. Moreover, the learned trial Judge has considered the below mentioned documentary evidence at the time of arriving at conclusion:- S. No. Description Exhibit 1 Panchnama of place of offence 14 2 Panchnama of body situation of the complainant and blood stained clothes seizure panchnama 15 3 Arrest panchnama of the accused 16 4 Original complaint 19 5 Medical certificate of the complainant 23 6 Public Notification 25 7 Panchnama of seizure of weapon 29 8 Letter of sending muddamal to FSL 30 9 Receipt of receiving muddamal 31 10 Analysis report 32 11 Serological report 34 5. On completion of the said evidence, further statement of the accused person was recorded under Section 313 CrPC, wherein he denied allegations and claimed to be tried by the Court below, which resulted into his conviction, as aforestated. The aggrieved appellant is before this Court in an Appeal preferred under Section 374 CrPC. Heard learned advocates appearing for the respective parties at length. 6. Learned advocate Mr. Jay Thakkar for Mr. Yogesh S. Lakhani for the appellant submitted that the learned trial Court has committed grave error in law in convicting the appellant. That, the impugned judgment and order of conviction is bad in law, illegal and is contrary to the principles of criminal jurisprudence. That, the learned trial court has not appreciated deposition of the witnesses examined in their proper perspective and thereby committed grave error of law to convict the appellant. The evidence on record, oral as well as documentary, do not support the prosecution case and on the evidence on record of the case, it could not have been said that the offence alleged against the appellant is proved beyond reasonable doubt or on any other lessor offence also could be said to have been proved. That, all the eye witnesses projected by the prosecution have not supported the prosecution case, the evidence of the complainant read with other evidence is so contradictory. That, on the basis of such evidence, it could not have been concluded that it was appellant and the appellant alone who had committed the crime. That, the identification parade does not inspire any confidence in as much as the panch witnesses of TI Parade have not supported the prosecution. That, on the basis of such evidence, it could not have been concluded that it was appellant and the appellant alone who had committed the crime. That, the identification parade does not inspire any confidence in as much as the panch witnesses of TI Parade have not supported the prosecution. That, the place where so-called identification parade was held was such an open place that anybody could have noticed and seen the facts of the accused and therefore also, the very authenticity and veracity of the identification parade becomes doubtful. That, the medical officer has stated that the injury no. 1 was a serious injury but the medical officer has not stated at all that either of the injuries found on the person of the complainant was a grievous hurt. Not only that, in the medical certificate, the type of injury has not been mentioned. That, no internal injury was examined by the medical officer as the relevant part of the body was not opened and therefore, the medical officer stated that he could not say as to whether there was any internal injury or not. In absence of any positive evidence to conclude prima facie that the injured has received any grievous hurt, the appellant could not have been convicted for the offence punishable under Section 326 of Indian Penal Code. That, the learned trial Judge has not properly appreciated the ratio of judgment cited at bar and has not considered them at all, while delivering the judgment. Learned advocate Mr. Jay Thakkar for the appellant has further submitted that while recording the statement under Section 313 CrPC, no specific question was put by the trial court on an inculpate material against the accused in the prosecution evidence, and therefore, it is fatal to the trial of the prosecution. That, recording of the statement of the accused under Section 313 CrPC is not a purposeless exercise. That, FSL report produced by the prosecution could not have been taken into evidence or relied upon by the prosecution since it was not brought before the appellate court. That, blood group of injured eye witness was not collected during the court of investigation and there is no proof of blood group “B” being that of the injured witness. That, FSL report produced by the prosecution could not have been taken into evidence or relied upon by the prosecution since it was not brought before the appellate court. That, blood group of injured eye witness was not collected during the court of investigation and there is no proof of blood group “B” being that of the injured witness. That, the charge was framed under section 307 IPC, however, conviction was accorded by the trial court under Sections 324 and 326 IPC, which is completely erroneous and illegal and against the evidence led by the prosecution. That, no appeal has been preferred by the prosecution against acquittal of the accused under Section 307 IPC. That, injury caused to the victim was not serious and/or fatal so as to attract provision under Section 320 IPC, as it was never found to be grievous. That, for an offence, which allegedly led occurred 21 years back, no purpose would be served in confirming the judgment and thereby convicting the accused after passing of such an elongated period. In support of his arguments, learned advocate for the appellant has placed reliance on the following judgments:- (1) Asraf Ali v. State of Assam, (2008) 16 SCC 328 (2) Ranvir Yadav v. State of Bihar, (2009) 6 SCC 595 (3) Mukhtiar Ahmed Ansari v. State (NCT of Delhi), (2005) 5 SCC 258 (4) Rajaram v. State of Rajasthan, (2005) 5 SCC 272 (5) Shaikh Maqsood v. State of Maharashtra, (2009) 6 SCC 583 (6) Subhashbhai Janubhai Bhoye v. State of Gujarat (7) Baldevji Vajaji Thakor v. State of Gujarat, 2014 (5) GLR 3992 Lastly, it was requested by learned advocate for the appellant to quash and set aside the judgment delivered by learned Additional Sessions Judge, Surendranagar in Special Sessions Case No. 89 of 1997. 7. Learned APP Mr. Rutvij Oza for the prosecution has supported the judgment and reasons assigned by the learned Additional Sessions Judge in arriving at a conclusion of convicting the accused. He urged that the learned trial Judge had taken adequate precautions in examining the evidence of prosecution witnesses. That, the complainant namely Shankarbhai Bhagwanbhai, after receiving injuries had fallen down on the earth and whereas, prosecution witness Amthubhai, who accompanied him had immediately shifted him to the Hospital. That, as per the opinion of the Doctor, injury no. He urged that the learned trial Judge had taken adequate precautions in examining the evidence of prosecution witnesses. That, the complainant namely Shankarbhai Bhagwanbhai, after receiving injuries had fallen down on the earth and whereas, prosecution witness Amthubhai, who accompanied him had immediately shifted him to the Hospital. That, as per the opinion of the Doctor, injury no. 1 caused to the complainant was serious in nature, and therefore, conviction under Section 326 IPC and sentenced imposed by the trial court was quite legal and proper. The prosecution has produced trustworthy evidence and the evidence of the prosecution witness was quite natural and if any minor contradiction is found, the witnesses were rustic and were living in a very remote area, and therefore, it would not be fatal to the prosecution case. That, due to old enmity of committing murder of Hathubhai Vijaysinh, this incident had taken place and was clearly proved by the evidence from the prosecution. That, Amathubhai Kukabhai- Prosecution witness No. 3 has informed the police about the incident. Identification parade was carried out by the Executive Magistrate, in presence of independent panchas, who was examined as a witness by the prosecution in presence of independent panchas and he has supported the prosecution. That, the panchnama prepared by him was clearly proved wherein the accused was identified. That, in identification parade, local panchas were selected. That, prosecution has proved its case beyond reasonable doubt against the accused and no interference is called for by this Court. Hence, it was requested by learned APP Mr. Oza to confirm the judgment passed by the learned Sessions Judge and thereby dismiss the appeal. 8. This Court has considered the respective submissions. Normally, this Court is reluctant to interfere with concurrent finding of facts by the trial Court. But, this does not preclude it in appropriate cases to reappraise evidence in the interest of justice, if it entertains any doubt about the nature of evidence and its appreciation or non-appreciation. It cannot be hard and fast rule in this regard, and much will depend on the concept of justice in the facts of a case, coupled with the nature of acceptable evidence on record. 9. It cannot be hard and fast rule in this regard, and much will depend on the concept of justice in the facts of a case, coupled with the nature of acceptable evidence on record. 9. The prosecution witness including injured witness Shankarbhai Bhagwanbhai, in his evidence Ex.6, has stated that on the day of this incident, he himself and his maternal uncle Amathubhai Kukabhai, when were exiting from the court building at about 2.00 p.m. one person, aged about 30 years, rushed towards him alongwith a knife and assaulted him. Three blows were given by this person, and therefore, he fell down on the ground. Accomplish Amathubhai immediately shifted the injured-complainant to C.J. Hospital for medical treatment in an rickshaw, where his dying declaration was recorded. His treatment continued for about two hours, and thereafter for further treatment, he was shifted to VS Hospital at Ahmedabad, where he stayed as an indoor patient for a period of one week. Before the Court, he identified the accused as a person who assaulted him on the day, as he was staying at Surendranagar. As per his statement, number of times, the accused was seen by him in Surendranagar city along with one Surubha and that it was his belief that the accused was staying at Surendranagar. In the cross-examination, he admits that in the complaint lodged by him, no name of the accused as an assaulter was declared by him or had ever given any details of his residence. He has not also declared in his complaint of his description, such as, his dresses, his face, etc. He has admitted that nearby the Court gate, there were certain shops of paan, cabins and rickshaws standing and these cabins as well as shops were open at the time of incident and some of the rickshaw drivers were also waiting for passengers. He immediately became unconscious, after sustaining injuries. He has no idea whether before shifting to hospital in a rickshaw, had paid visit to City Police Station before he was unconscious. He further admits in his cross-examination that after he became conscious within a period of half and hour, his complaint was recorded by the police at about 15.30 to 16.00 p.m. He further stated that after recording his complaint by the police, his dying declaration was recorded by the Executive Magistrate. His mother had also paid visit at the Surendranagar Hospital. His mother had also paid visit at the Surendranagar Hospital. He admits in his cross-examination that during his treatment in C.J. Hospital, his complaint was recorded so also when recording of his dying declaration was being made, Amathubhai was present. He further admits in his evidence that while he proceeded from the Tower in the morning, one person namely Sagar, son of the Darbar community, was watching him and while he went into the Court compound, Sagar followed him in the Court, and therefore, he had a doubt as to why he was watching him. He further stated that the person who assaulted him by knife, ran away after assaulting him. He denies that he has not identified the assaulter, however, initially, his name could not be rendered by him in his complaint. From the cross-examination of this witness, it appears that there is material contradiction in the statement made by this witness in his complaint as well as the one which he gave before the Court. Admittedly, for a period of one week, he was treated in the hospital at Ahmedabad. As per his evidence, he was called by the police at the City Police Station at Surendranagar, after arrest of the accused. As per his admission, before the Court, a police vehicle came at village Rajpar informing him to visit at Police Station, as the accused was arrested and he had to pay visit at Mamlatdar Office. He was taken to the office of Mamlatdar at Wadhwan by Police Station in a motor vehicle. Identification parade was carried out, where he identified the assaulter. After passing of 2 to 3 months of the incident, he was called upon to identify the accused at the office of Mamlatdar, Wadhwan. Considering his admission in his cross-examination, it appears that there was further possibility of identifying the person entering and exiting from the office of Mamlatdar. However, it is clearly admitted by this witness that his dying declaration was recorded by the Executive Magistrate, after recording his complaint, no dying declaration was produced on record by the prosecution. No explanation has come forth regarding non-production of this material document, a dying declaration of the injured witness. Here, this Court would like to examine evidence of PW-2 Takhuben Bhagwanbhai. No explanation has come forth regarding non-production of this material document, a dying declaration of the injured witness. Here, this Court would like to examine evidence of PW-2 Takhuben Bhagwanbhai. She testifies before the Court that on her receiving news of injury caused to the complainant-her son Shankar, she immediately rushed to C.J. Hospital, Surendranagar, where her son was admitted and was undergoing medical treatment. When she paid visit at the hospital, her son namely Shankar was unconscious, and thereafter, he was shifted to Ahmedabad for further treatment from Surendranagar. She further states that while Shankar was being shifting to Ahmedabad from Surendranagar, he was unconscious and there was no talk with him until he was shifted to Ahmedabad in connection with the incident. 10. If we consider statement of prosecution witness Takhuben that Shankar was unconscious, till he was shifted to Ahmedabad for further treatment, the said statement contradicts with the one given by the complainant. According to complainant Shankarbhai his complaint was recorded by the police at about 15.30 to 16.30 p.m. in the hospital, and thereafter, his dying declaration was recorded. Takhuben falsifies the deposition of the complainant-her son saying that Shankar was unconscious when she paid visit in the hospital and found him unconscious, till he came to be shifted to Ahmedabad. Here also, a doubt clearly surfaces whether injured Shankar was conscious or not? While recording his complaint by the police in the hospital at about 15.30 to 16.00, P.W. Amathubhai Kakubhai, as per the prosecution case, was an eye witness of the incident. This witness has supported entire incident of assaulting the complainant by a person with knife. But, thereafter at the material point, he turns hostile saying that due to poor vision, he could not identify the accused. He was not in a position to identify the weapon used in the offence. After the incident, Shankar was taken to City Police Station at Surendranagar in an Auto Rickshaw, where he informed the police about the incident. Thereafter, injured was shifted to C.J. Hospital by this witness. He was treated there for a period of 4 to 5 hours and thereafter, shifted to Ahmedabad. At material point, this witness has not supported the prosecution and has been declared hostile. 11. In his cross-examination, he denies that assaulter was not the present accused. Thereafter, injured was shifted to C.J. Hospital by this witness. He was treated there for a period of 4 to 5 hours and thereafter, shifted to Ahmedabad. At material point, this witness has not supported the prosecution and has been declared hostile. 11. In his cross-examination, he denies that assaulter was not the present accused. He admits the fact of stopping the rickshaw outside the police station in the market, the incident was informed to the Police Officer and complaint was recorded by the police in his presence in the hospital. The complainant was discharged from C.J. Hospital at about 7.00 p.m. If we recall the statement of Takhuben, complainant was unconscious till he was shifted to Ahmedabad for further medical treatment. 12. Prosecution witness No. 4 Iqbalbhai Valliyuddin Desai, who was performing his duty as Executive Magistrate from February 1997 to September 1997 supports the prosecution case. He carried out identification parade in connection with this incident. He has described the procedure carried out by him in his office on 30.05.1997. As per his statement, the accused person was identified by the complainant, during the procedure and accordingly panchnama was prepared in his presence, which was produced at Ex.11. In his cross- examination, he admits that panchnama of the identification parade was kept by him in his hands and he read the same. It appears from further cross-examination of this witness that no procedure; as required, was followed either by the police or by this witness of completing the identification parade. This witness admits that he was not informed by the police. He admits that for carrying out panchnama, police was never informed by him. After receiving a “yadi” from the police to prepare a panchnama of identification parade, he had no idea in respect of the resident of the accused. He had no idea as to how the accused was brought to his office from Surendranagar to Wadhwan. The complainant himself has admitted in his cross-examination that police came to call him informing that the assaulter was arrested and he had to identify the accused in the Police Station. No written information was given to him by the Mamlatdar or Police. The complainant himself has admitted in his cross-examination that police came to call him informing that the assaulter was arrested and he had to identify the accused in the Police Station. No written information was given to him by the Mamlatdar or Police. It appears that straightway without any written information of conducting the test identification parade by the Executive Magistrate, Wadhvan, he secured presence of the complainant to identify the accused him and he was called upon by sending a police officer informing that accused was arrested and he had to identify the accused. This Court is of the view that the said procedure adopted by the Executive Magistrate or by Investigating officer conducting the test identification parade of the accused cannot be said to be legal and proper. Further, situation of the office of the Executive Magistrate, where test identification parade was carried out, appears to be where there was entrance and exit of public at large. Material witness Amathubhai Kakubhai has not supported the prosecution case at a material point of identifying the accused. The panchnama Ex.11, under the circumstances, has no value in the eyes of law. 13. Another prosecution witness i.e. PW-5 Shamjibhai Virjibhai (Ex.12) has tried to support the prosecution to some extent, but at the material point, he turned hostile. In his cross-examination, he clearly denies that the assaulter was seen by him, having aged about 20 to 30 years. Another prosecution witness i.e. PW-6 Jitendrasinh Harisinh Rathod (Ex.13) on the same lines as of the previous witness Shamjibhai Virjibhai, admits of his having witnessed the incident and supported the prosecution case, but denies of identifying the assaulter, and therefore, he also came to be declared hostile by the prosecution. 14. Prosecution witness No. 7 Dhanjibhai Maganbhai is a panch witness of recovery of the weapon used by the accused, which he was not willing to identify in confirmation and hence, was turned hostile. 15. Prosecution witness No. 8 Jayendrasinh Jilubha Parmar (Ex.18) has recorded the complaint of the complainant in the C.J. Hospital, Surendranagar. As per his evidence, complaint was recorded by him as per the instructions of the complainant and was read over to him. He had signed the complaint before this witness and was produced vide Ex.19. As per his evidence, this complaint was recorded at about 14.20 p.m. in a conscious condition. As per his evidence, complaint was recorded by him as per the instructions of the complainant and was read over to him. He had signed the complaint before this witness and was produced vide Ex.19. As per his evidence, this complaint was recorded at about 14.20 p.m. in a conscious condition. His mother Takhuben denies consciousness of the complainant Shankar till leaving the hospital for Ahmedabad. A complaint which is produced at Ex.19, wherein no name of the accused was declared by the complainant. 16. Prosecution witness No. 9 Jilubhai Mothibhai Gohil (Ex.20) is one of the panch witnesses of the test identification parade and except admission of the signature in the panchnama, other contents were not supported by this witness, and therefore, declared hostile. 17. Prosecution witness No. 10 Dr. Salil Pravinchandra Kharod has deposed at Ex.22. He has identified two injuries caused to the complainant, out of them, injury no. 1 was found serious in nature, while injury no. 2 was found simple in nature. As per the say of complainant, he had received three injuries. As per the medical opinion, these injuries were possible by a sharp weapon, such as, a knife-muddamal article No. 6. Medical certificate issued by this witness was produced vide Ex.23. He has not written any history of the injured in his medical certificate or types of injuries also. He has not written that by which weapon, injury was possible in his certificate. As per his evidence, only primary treatment was given to the complainant. Therefore, he was not in a position to opine in respect of internal injury, if any caused. The injuries were possible if the assaulter would attack from the back side. Here also, in absence of any history, causing injury to the complainant, strong doubt is created in respect of his knowing name of assaulter and the weapon used by assaulter and the weapon by the complainant before the doctor, who treated him on 26th March 1997. There is material contradiction of number of injuries also. As per the medical opinion, there were only two injuries while the complainant, his mother Takhuben and Amathubhai have spoke of three injuries. As per opinion of Dr. There is material contradiction of number of injuries also. As per the medical opinion, there were only two injuries while the complainant, his mother Takhuben and Amathubhai have spoke of three injuries. As per opinion of Dr. Salil Kharod, first injury was a sharp cutting wound 3 x 1 cm on back side and his right hand passing over the 11th rib, which cannot be in any way termed as a grievous hurt. 18. Definition of grievous hurt is provided in Section 320 IPC, which provides, as under: 320. Grievous hurt – The following kinds of hurt only are designated as grievous:- (i) to (vii)......... (viii) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. 19. Doctor has not opined that there was alleged danger to life due to injuries caused to the complainant/injured or suffering of the complainant during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Admittedly, injury no. 2 was found by the doctor simple in nature. 20. Under the circumstances in absence of any opinion by the doctor of endanger to the life, due to hurt or causing severe bodily pain during the span of twenty days, or patient unable to follow his ordinary pursuits, it could be difficult to accept the charges of “grievous hurt” and thereby convict the accused under Section 326 IPC, or 324 IPC as made out by the trial court. Doctor has opined nothing in respect of condition of the complainant in connection with injury No. 1. No other medical evidence has been available with the prosecution on this issue. 21. Prosecution witness No. 11 Kanubhai Narayanbhai Palaniya is the second panch of the test identification parade. He has in his version (Ex.11) stated to have adopted the say of previous witness and followed him by admitting his signature in the panchnama at Ex.11 and except this, he has no knowledge of any procedure conducted in the office of Executive Magistrate. He has not supported the prosecution case and therefore declared hostile. 22. Another prosecution witness No. 12 Viresh Navinchandra Sanghavi, who is a panch witness of recovery panchnama of weapon seized, was examined but he too has not supported the prosecution case and turned hostile. 23. He has not supported the prosecution case and therefore declared hostile. 22. Another prosecution witness No. 12 Viresh Navinchandra Sanghavi, who is a panch witness of recovery panchnama of weapon seized, was examined but he too has not supported the prosecution case and turned hostile. 23. Prosecution witness No. 13 is the Investigating Officer Bavanji Danabhai Rabari. He has tried to establish the prosecution case by stating the procedure arrived out and the investigation made by him. He has stated that he has investigated into the matter and collected weapon and in the offence under panchnama and the muddamal seized during the course of investigation was forwarded to the FSL, Junagadh for analysis. Thereafter, completing the analysis by the FSL, Junagadh, a report was received by him, which was produced at Exh.34. 24. In the cross-examination, he admits that after arresting the accused, upto the next date, at about 15.00 p.m. till identification parade was carried out, accused was under his custody. He was never informed by the Executive Magistrate about time and date to conduct the identification parade. No written yadi was sent by him to the complainant informing him of conducting the identification parade and to remain present before the office of Executive Magistrate, Wadhwan. As per the instructions issued by Executive Magistrate, as police officer was sent to the complainant and he was brought at the office of Executive Magistrate. Here, if we consider the statement recorded under Section 313 CrPC of the accused, it appears that not a single incriminating question was asked to the accused by the Court in respect of the Serological report received from the FSL, Junagadh, which is produced vide Ex.34. In the entire investigation, it appears that blood samples of the complainant was never collected, and therefore, it would be difficult to accept the version of prosecution of blood group “B” of the complainant/injured Shankarbhai. 25. In case of Ranvir Yadav v. State of Bihar, (2009) 6 SCC 595 , Apex Court has held that the statement of the accused under Section 313 CrPC was mandatory. Requirement under Section 313 is not an empty formality. 25. In case of Ranvir Yadav v. State of Bihar, (2009) 6 SCC 595 , Apex Court has held that the statement of the accused under Section 313 CrPC was mandatory. Requirement under Section 313 is not an empty formality. The whole object of this section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accuesd’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 26. In case of Mukhtiar Ahmed Ansari v. State (NCT of Delhi), (2005) 5 SCC 258, the evidence of prosecution witness was found not supporting the prosecution case. However, said witness was not declared hostile. It was held by the Apex court that accused can rely on that statement. Here also, state of unconsciousness/consciousness of the complainant Shankar, as stated by his mother Takhuben that her son was unconscious while she visited CJ Hospital, Surendranagar till he left for Ahmedabad, her statement was not contradicted nor she was declared hostile by the prosecution. Hence, her statement can be relied upon by the accused. If we accept her statement of unconsciousness of the complainant up to 17.00 hours of shifting him to Ahmedabad for further medical treatment, the theory of recording his complaint by the police at about 14.20 hours would not survive. 27. In case of Rajaram v. State of Rajasthan, (2005) 5 SCC 272, the same view was taken by the Apex Court. 28. In case of Shaikh Maqsood v. State of Maharashtra, (2009) 6 SCC 583 , it is held that while examining the accused under section 313 CrPC, appropriate question was not put to the accused and he was convicted under Section 302 IPC. The Hon’ble Apex Court viewed that conviction cannot be maintained and it was set aside. 28. In case of Shaikh Maqsood v. State of Maharashtra, (2009) 6 SCC 583 , it is held that while examining the accused under section 313 CrPC, appropriate question was not put to the accused and he was convicted under Section 302 IPC. The Hon’ble Apex Court viewed that conviction cannot be maintained and it was set aside. Same view is adopted and followed by Division Bench of this High Court in case of Subhashbhai Janubhai Bhoye v. State of Gujarat. 29. In case of Baldevji Vajaji Thakor v. State of Gujarat, 2014 (5) GLR 3992, it is held that blood detected on clothes of accused matched with blood group of deceased. However, in absence of determination of blood group of accused, it was held that it could not be treated as incriminating circumstance. Here also, blood group of the complainant was never collected nor determined, and therefore, it would be difficult to say that blood group “B” was of the complainant. 30. In case of Subhashbhai Janubhai Bhoye v. State of Gujarat, it is held that fact of accused absconding after occurrence was not put to the accused under section 313 CrPC and therefore, the same cannot be used against him and conviction was reversed. 31. In light of the above discussion, in the considered opinion of this Court, prosecution has failed to establish commission of alleged offence by the accused beyond reasonable doubt. The evidence is scanty and look for support to establish that the accused has injured the complainant by giving three blows with a knife and he recorded complaint on the day of his visit to C.J. Hospital, Surendranagar at 14.20 hours in his conscious condition. The material witness Amathubhai has turned hostile as well as other two witnesses examined by the prosecution. The test identification parade (Ex.11) was not conducted in legal and proper way, and therefore, it can not be relied upon. For the first time, in test identification parade, after passing of 2 to 3 months of the incident, accused was identified, which creates a strong doubt of the procedure story. The panchnama was not supported by the panch witnesses. Material question on Serological report prepared by FSL, Junagadh was not put to the accused, while examining him under Section 313 CrPC. Therefore, it cannot be used against him as an evidence. The panchnama was not supported by the panch witnesses. Material question on Serological report prepared by FSL, Junagadh was not put to the accused, while examining him under Section 313 CrPC. Therefore, it cannot be used against him as an evidence. On the above stated circumstances, prosecution story cannot be believed to base conviction of the accused, and therefore, he deserves benefit of doubt. This Court is of the view that the conviction imposed by the trial courts requires to be quashed and set aside. 32. In the result, this Criminal Appeal succeeds and is accordingly allowed. The impugned judgment and order dated 28.02.2002 passed by learned Additional Sessions Judge, Surendranagar in Sessions Case No. 89 of 1997 is hereby quashed and set aside. Consequently, the appellant is hereby acquitted. The appellant is on bail, by virtue of order passed this Court dated 31st March 2002 whereby his substantive sentence of punishment has been ordered to be suspended under section 389 CrPC. Therefore, his bail bond is hereby cancelled. Needless to mention here that the appellant has been acquitted of the charge for which he came to be convicted and sentenced by the trial court, as afore-stated, and therefore, his liberty shall be subject to his not being involved in any other offence. 33. R&P to be transmitted back to the trial court. Appeal allowed.