JUDGMENT : ANANT S. DAVE, J. 1. This appeal is filed under section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 15.9.2008 passed by learned Additional Sessions Judge, Fast Track Court No.1, Khambhalia in Sessions Case No.102 of 2006 whereby the appellants are convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and to undergo life imprisonment and fine of Rs.5,000/- and in default of fine 1 year simple imprisonment and further the appellants are also convicted for the offence punishable under Section 135(1) of the Bombay Police Act and to undergo 6 months of simple imprisonment and fine of Rs.500/- in default of fine to undergo 2 months of simple imprisonment. All the sentences are ordered to run concurrently. 2. The genesis of the case of the prosecution as in the complaint Exh.50 lodged by one Ranabhai Devabhai Gadhvi P.W.6, that around 8.00 a.m. of 23.6.2006 at the outskirts of village Thakarsherdi, his brother Ram Deva and uncle Gusa Saja were proceeding for village Thakarsherdi on motorbike with bag full of millet to be grinded and were followed by accused No.1-Naran Khimanand Jam Gadhvi and accused No.2-Ramde Khimanand Jam Gadhvi, cousins of the complainant also on a motorbike with weapons like axe and dhariya and the complainant had an apprehension in view of the incident of previous day so reported to him by his uncle about a quarrel which had taken place between accused and Gusa Saja and, therefore, the complainant rushed and followed the accused. That the distance of the field of the complainant and the outskirts of village Thakarsherdi is 3 k.m. and the complainant reached at the outskirts of village Thakarsherdi around 8.30, he had seen accused Nos.1 and 2 inflicting discriminate blows of dhariya and axe upon his brother and uncle and upon raising an alarm both the accused after inflicting blows of axe and dhariya run away and both the injured fell on the ground bleeding profusely and called his relatives by riding on a motorbike of the injured and thereafter injured were taken to nearby Government Hospital at Khambhalia and injuries were serious. Upon an advise and preliminary medical treatment both the injured were taken to G.G.Hospital, Jamnagar and the in-charge Doctor upon examination declared both the injured, dead. Upon an advise and preliminary medical treatment both the injured were taken to G.G.Hospital, Jamnagar and the in-charge Doctor upon examination declared both the injured, dead. According to complainant both the cousins accused Nos.1 and 2 had a motive and had an intention to grab the land belonging to Gusa Saja, uncle of the complainant and even in the past had administered threats and due to such grievances with an intention to kill uncle and brother of the complainant inflicted indiscriminate blows of Dhariya and axe and thus caused death of both the persons. 3. That initially P.W.17 who acknowledged FIR and concluded inquest panchnama and thereafter P.W.18 undertook the detailed investigation and on filing of the charge-sheet, since the case was triable by the Sessions Court it was committed accordingly in which, prosecution examined almost 19 witnesses and 40 documentary evidence and the learned trial Judge believed the case of the prosecution that the prosecution established its case beyond reasonable doubt resulting into conviction to which reference is made in earlier paragraph. 4. Mr.A.D.Shah, learned counsel with Mr. Yatin Soni, learned advocate appearing for the appellants would contend that the case on hand resulting into conviction of appellants do not disclose the genesis of the crime and the prosecution has failed to come out with true version of the incident. That origin of the incident if perused in backdrop of what is stated by complainant P.W.6 in his complaint Exh.51 and the testimonies recorded in the Court has no important substantial but is projected as an eye witness by the prosecution and his presence at the scene of offence having witnessed the crime is highly doubtful while taking us to contents of the complaint and testimonies of P.W.6 vis-a-vis that of medical injuries inflicted on deceased as per P.W.5 Dr.Prithviraj Vaghela, 6 external injuries on each of the deceased were possibly by usage of stick, while injury No.7 was not possible in case of deceased Gusa Saja. The cause of death as per postmortem report was multiple injuries and that the injured died due to head injuries. That, initially P.W.6, the complainant in his complaint specifically described the accused not only armed with axe and dhariya but also used such weapons for inflicting injuries and that information received and entries made in station diary also reveal the same aspect. That, initially P.W.6, the complainant in his complaint specifically described the accused not only armed with axe and dhariya but also used such weapons for inflicting injuries and that information received and entries made in station diary also reveal the same aspect. P.W.6 when confronted in his cross-examination about his version in the complaint he denied it out rightly that no mention was made by him of accused following the deceased on motorbike with weapons like axe and dhariya and further denied to have inflicted blows indiscriminately by axe and dhariya. P.W.6 faints ignorance about inflicting blows on head of both the injured with weapons like axe and dhariya but admits that he had no idea or that he fail to remember to have stated that weapons like dhariya and axe were named as they are used for the purpose of agricultural on permanent basis. That further cross-examination of P.W.6 established quarrel taking place between accused and the deceased and that inflicting indiscriminate blows on each other and even accused were also found bleeding and they were taken to local hospital Khambhalia in ambulance and in the same ambulance injured deceased were also taken from Khambhalia to Jamnagar. Based on the above, our attention was drawn by taking us to evidence of P.W.17 who at relevant point of time was serving as PSI at City ‘B’ Division Police Station, Jamnagar and receiving entry No.14 of 2006 around 11:50 a.m. on 23.6.2006 from PSO of same police station, in cross-examination of this P.W, it is admitted that complainant disclosed the fact of accused following the deceased on motorbike with weapon like axe and dhariya and also inflicting indiscriminate blows by such weapons and the complainant taking motorbike of his uncle and brother calling the relatives at the scene of offence. The fact about the accused receiving injuries and taking treatment at local hospital Khambhalia remained undisputed and one of the accused also receiving injury on head and the registration of FIR No.75 of 2006 by accused against injured deceased and entry in this regard in police station diary. That evidence of P.W.18 who had taken over investigation and recorded statements of various witnesses admits the complainant in his further statement stating about name of dhariya and axe as such equipments of articles/weapons were ordinarily used for agricultural purpose. That evidence of P.W.18 who had taken over investigation and recorded statements of various witnesses admits the complainant in his further statement stating about name of dhariya and axe as such equipments of articles/weapons were ordinarily used for agricultural purpose. About visiting the scene of offence blood stain soil and stones lying their and bamboo stick in three pieces and iron nail. Even other bamboo stick was found along with some clothes and while crossing the road towards south in the circumference of 5 ft. signs of grappling and scattered blood stains were also noticed. 5. Mr.A.D.Shah, learned counsel for the appellant has heavily relied on number and nature of injuries in the context of testimonies of P.W.5 vide Exh.41 Dr.Prithviraj Vaghela and contended that all injuries except No.7, on one of the injured were possible by hard substance and not a single injury is found by sharp cutting weapon as per the case of the complaint and initial version of the complainant. That one of the sticks which was found by the prosecution had no blood stains and the complainant has thus changed his entire version based on defective inquest panchnama and the initial registration of complaint and investigation undertaken by P.W.17 and P.W.18 who were seriously criticized by the learned trial Judge and though believed on all counts, prosecution failed to establish its case beyond reasonable doubt but on the basis of assemblance of evidence emerging on record about FSL/serological report and contents of blood group of deceased on clothes of accused and that of article ‘J’, stick and articles D1, D2, D3 and D4 stones again containing blood of the deceased, it was concluded that the appellants herein were involved in the crime, in which, sufficient evidence was brought on the record, established and proved beyond reasonable doubt. 6. 6. In substance, the foundation of the case of the prosecution is not only weaker but non-existent and structure put up, no foundation falls flat in absence of any cogent, convincing or clinching evidence and as submitted earlier version of the only eye witness P.W.6 complainant not only suffers from substantial importance but he has made a same sole by changing the articles of assault and tested in the touch stone of parameters of truthfulness, trustworthiness and collective analysis of the testimony of such eye witnesses in juxtaposition to what is deposed to by P.W.17 and P.W.18 and documentary evidence. It is not inspiring any confidence and, therefore, not reliable. The testimony of P.W.6 according to learned advocate for the appellant not only to be disregarded but also to be discarded in toto. 7. That submissions are made while assailing the reasonings and conclusions drawn by learned trial Judge based on findings, for which, evidence appreciated by learned trial Judge on the contrary would go to show that at the most quarrel had taken place, presence of the accused at the scene of offence cannot be doubted and injuries received by the accused as well as the deceased ought not to have resulted into conviction based on such failure on the part of prosecution to bring on record correct version of the incident. On various other issues like distance of 1 ½ km. atleast covered by the complainant while following the accused on motorbike, version about purpose for which, the deceased left on motorbike for grinding millet and flour found at the place of offence and map prepared by Circle Inspector after a few months and even explanation and additional submissions made along with Section 313 statement by the accused would reveal that pendency of so called dispute about the land had no nexuses immediately. Other witnesses were either informed by P.W.6 or received information later on and that they were relatives and interested upon throwing any light on the case of the prosecution and even no corroboration emerged on the record to the version of the complainant and, therefore, learned Judge ought to have given benefit of doubt which the appellants deserve since it cannot be said that the prosecution proved its case beyond reasonable doubt. That appeal on hand accordingly deserves to be allowed by quashing and setting aside the judgement and sentence dated 15.9.2008 passed by learned Additional Sessions Judge, Fast Track Court No.1, Khambhalia in Sessions Case No.102 of 2006. Mr. Shah has placed reliance on two decision of the Apex Court in the case of State of U.P. vs. Ram Swarup and Anr. AIR 1974 SC 1570 in support of his submissions based on para 18 and 19. (2) Bhagwan Sahai and Anr. v. State of Rajasthan AIR 2016 SC 2714 , in which, genesis of occurrence was suppressed by prosecution and further failed to explain injuries on person of accused in which the Apex Court have given benefit of doubt to the accused. (3) Prabhoo v. State of Uttar Pradesh AIR 1963 SC 1113 in the context of Section 27 of the Evidence Act that in which, fact when can be treated as discovered or explained by relying on celebrated decision in the case of Pulukuri Kotayya v. Emperor AIR 1947 PC 67 and simply because mere production of the blood stain articles by the appellant one cannot come to the conclusion that the appellant committed the murder. 8. That the above principle was followed even in the subsequent decisions and lastly in the case of State of U.P. Rekha Sengar v. Sunil; State of U.P. & Anr. AIR 2017 SC 2150 , in which, conviction recorded under Section 302 read with Section 34 of Indian Penal Code in which death sentence was awarded by trial Court was set aside by the High Court in appeal by acquitting the accused and order of the High Court came to be confirmed. 9. Learned APP Ms. Maithili D.Mehta, vehemently would oppose any interference in the judgement and order of conviction under Section 302 and 34 of Indian Penal Code and sentencing the accused for life by learned trial Judge based on well deserved appreciation of evidence on record by assigning reasons and conclusions drawn, in which, case of the prosecution was believed that it was proved beyond reasonable doubt. The case on hand according to learned APP reveal firstly and cruel act on the part of both the appellants, in which, two persons had lost their life. The case on hand according to learned APP reveal firstly and cruel act on the part of both the appellants, in which, two persons had lost their life. It is submitted that improvement, omission, discrepancies and contradictions even if any emerging on the record vis-a-vis in the context of complaint Exh.51 and testimonies of P.W.6, P.W.17 and P.W.18 will be of such a nature and not resulting into affecting the core of the case of the prosecution. That testimonies of P.W.6, P.W.17 and P.W.18 and that of P.W.5 if considered in juxtaposition, it cannot be said that simply because in initial version disclosing the offences in the complaint articles of assault described by the complainant were not sticks but axe and dhariya ordinarily used for agricultural purpose since ample corroboration available in the form of medico legal evidence and testimonies of other P.W.’s. 9.1. That considering further statement of the complainant P.W.6 recorded by investigating officer, it was explained that the complainant was well versed with equipments of agricultural purpose and axe and dhariya are also used for the same. Inadvertently he had described such article to which he was familiar. At the same time merely description of the articles of assault turned out different in testimonies than what was stated in the complaint if nature of injuries reflected in column No.17 of postmortem report of one of the deceased Gusa Saja Gadhvi at Exh.42 and of another deceased Exh.44 established the fact of usage of stick that except injury No.7 in the case of deceased Gusa Saja Gadhvi and in the case of deceased Rama Deva Gadhvi almost all injuries were possible by usage of hard and blunt substance. That cause of death was head injury and the medical witness P.W.5 and confronted with various possibility of nature of injuries whether inflicted by other than hard and blunt substance remains consistent. It is established beyond reasonable doubt that all injuries collectively inflicted by the accused on both the deceased were sufficient enough to cause death. That cause of death was head injury and the medical witness P.W.5 and confronted with various possibility of nature of injuries whether inflicted by other than hard and blunt substance remains consistent. It is established beyond reasonable doubt that all injuries collectively inflicted by the accused on both the deceased were sufficient enough to cause death. Inter alia, it is submitted that from the scene of offence panchnama, articles recovered included flour and millet and the time taken by the complainant to reach at the scene of offence in the context of his statement in the complaint that he had seen his uncle and brother leaving on a motorbike for getting the millet grinded and defence cannot indulge into hairsplitting exercise to the extend that such version contained minor discrepancies would come to their rescue. Even, article namely stick “J” recovered from the scene of offence contained blood group “A” and other articles, stones, D1, D2, D3 and D4 had also blood stains having blood group of the deceased ‘A’. That learned trial Judge while appreciating the testimonies has concluded the motive behind the crime of dispute pertaining to agricultural land purchased and owned by deceased Gusa Saja Gadhvi and lacuna in the case of the prosecution due to negligence or to the some extend irregularity by the investigating officer if any would again fell into insignificance since other prosecution witnesses provide ample corroboration and they are P.W. 8 who had taken injured in a rickshaw to the local hospital at Khambhalia and thereafter in ambulance for providing better treatment at G.G.Hospital, Jamnagar. Though the above witness is not an eye witness but was informed immediately around 8:30 of the day on which the incident had taken place and had seen both the injured lying on the land. P.W.9 Dahiben Devabhai Gadhvi was also informed by her cousin and later on by complainant and confirms about previous animosity with regard to the disputed agricultural land. Even P.W.10 a rickshaw driver taking both the injured to local hospital Khambhalia confirms to have witnessed injured requesting for a glass of water. That further evidence emerged on record is that of medical officer of General Hospital, Khambhalia P.W.15 Dr. Even P.W.10 a rickshaw driver taking both the injured to local hospital Khambhalia confirms to have witnessed injured requesting for a glass of water. That further evidence emerged on record is that of medical officer of General Hospital, Khambhalia P.W.15 Dr. Paras Vitlani, Medical Officer of Local Hospital Khambhalia who deposed to based on medical record maintained by the hospital since the Doctor who had treated both the injured preliminary was not available but at the same time injury certificates marked 10/1 and 10/2 which was exhibited as Exh.91 and 92 reveal injuries were of serious nature and were referred to higher centre and was having signature of Nizamudin Khan. That detail reference is made to the nature of injuries on both the injured, to which, we will advert later on but learned APP vehemently contended that so far injures on accused deposed to by the above P.W. contained simple injuries and burden on the prosecution or on accused or on both to explain such injury would never arise to discharge the burden on the accused. That nature of injuries described in inquest panchnama of the bodies of both the deceased and not noticed by P.W.5, postmortem doctor again will be of no significance since major injuries including that on vital part in Column No.17 of both the postmortem reports vide Exh. 42 and 44 were deposed to and even internal injuries are corresponding to external injuries on parietal region of both the injured deceased resulting into fracture of skull and causing hemorrhage etc. 10. Even conduct of the accused of running away from the scene of offence after relatives of the complainant and injured arrived is also to be considered in light of testimonial version of P.W.6 and other corroborating evidence. The learned trial Judge has no doubt criticized the manner in which registration as well as investigation undertaken by the police personnel but at the same time has given cogent reasons for accepting the case of prosecution. The learned trial Judge has no doubt criticized the manner in which registration as well as investigation undertaken by the police personnel but at the same time has given cogent reasons for accepting the case of prosecution. That reliance placed on FSL/serological reports by learned trial Judge based on documentary and oral evidence proved further reveal involvement of accused in the crime and blood stain marks, according to learned APP at the cost of repetition of stones, motorcycle belonging to the deceased, stick recovered from the scene of offence undoubtedly contains ‘A’ group that of deceased and collectively such evidence along with testimonies of eye witnesses P.W.6, complainant, medico legal evidence together lead to no other conclusion to that of crime committed by both the accused in a diabolical manner by discriminating using sticks and while exercising powers under Section 374 under Section 386 of the Code of Criminal Procedure, 1973, the Court would reveal no interference with the conviction and sentence so ordered by learned trial Judge. 11. Having heard learned counsel appearing for the appellant and learned APP in the context of judgment and order of conviction and sentence under challenge under Section 302 read with Section 34 of Indian Penal Code and a careful perusal of the entire record, we would first like to address on the submissions made by learned counsel for the appellant about absence of true version of the incident and that emergencies or origin of the incident is suppressed and not brought on record by the prosecution entitling the appellants/convicts/original accused for benefit of doubt. 11.1. That version of the complainant in complaint Exh.51 is referred to in para 2 of this judgment and as per his statement he is nephew and brother of deceased respectively and referred to the dispute with regard to agricultural land between deceased and accused. Undoubtedly in the complaint he has stated the accused leaving on their motorcycle with axe and dhariya and that complainant followed them in view of the incident which took on previous day between the deceased and the accused so reported by his uncle to him and that when the incident namely of inflicting injuries by accused upon deceased took place he had witnessed the same. A categorical assertion is made in the complaint that indiscriminate blows of dhariya and axe were given by the accused upon his uncle and brother who fell down on the ground bleeding profusely but at the same time having seen the complainant the accused had escaped and that motorcycle belonging to uncle of the complainant was used by him for calling his other relatives were admittedly not examined namely Ala Jivan and Jivan Naru and Ala Jivan being P.W.8 admits to have not witnessed the incident but had gone to call the rickshaw but at the same time confirms the presence of his father and the complainant. That taking both the injured by complainant to General Hospital, Khambhalia and thereafter to Higher Centre at Jamnagar at G.G.Hospital in ambulance again gets corroboration. So is the case about injured accused who were taken to General Hospital, Khambhalia and treated by P.W.15. That upon advise to refer to higher centre, the injured namely uncle and brother of the complainant were taken to G.G.Hospital while accused had gone to Civil Hospital, Rajkot and was also deposed to by prosecution witness P.W.14 Kishore Ramani. The history given by the accused reveal assault by the assailant by the stick and so far as accused Ramde Khimand is concerned in the CT Scan fracture of the skull was revealed and such injuries were also possible by usage of hard and blunt substance. The above P.W. further opined that injury on accused Ramde Khimand of skull fracture was serious and that it was on vital part of the body. Injuries on the deceased are as under: Gusabhai Sajabhai Gadhvi Column No.17-External injuries. (1) Scalp and head injuries are described in column No.20 (2) 5 x0.1.cm CLW present over the right side of cheek. (3) About 15 x 2.5 cm size tram line pattern, 2 contusions seen on outer surface of mid portion of left thigh. (4) About 14x2.5 cm size of tram line pattern, 3 contusions seen on outer and front surface of upper back of the right thigh. (5) Multiple small (about 1 x 1 cm size) contusion seen on the front surface of both knees. (6) 2 x 0.5 cm size abrasion seen on outer surface of right knee. (7) About 2 x 0.5 cm size punctured wound seen on right side of the pelvis. (5) Multiple small (about 1 x 1 cm size) contusion seen on the front surface of both knees. (6) 2 x 0.5 cm size abrasion seen on outer surface of right knee. (7) About 2 x 0.5 cm size punctured wound seen on right side of the pelvis. It is superficial and depth is 3 cm, wound direction being downward, inward and forwards and margins are slightly bruised. Column No.20-Internal examination: Head (1) About 4 x 3 cm size CLW seen on right parietal region of the scalp. It is bony deep and underline bone shows communated fracture of 3 x 3 cm size (right parietal bone). (2) About 6.4 cm size CLW seen on left parietal eminence of the scalp. It is bony deep and star shape, underline based shows communated fracture of 4 x 3 cm size. (3) Defused subdural and subarachnoid haemorrhage seen. Brain matter soft and pale. Column No.24- Opinion as to cause or probable cause of death- Died due to head injury Ramabhai Devabhai Gadhvi Column No.17-Surface wounds and injuries- (1) About 2 x 0.5 cm size 4 CLW seen on the left side of the forehead just above left eye-brow. Underlined bone shows 5 cm long linear fracture (Frontal bone). They are bony deep. (2) 3 x 0.5 cm size, CLW seen near the inner end of left eye-brow. It is bony deep. (3) 1 x 0.5 cm size CLW seen on the left external ear. (4) 3 x 0.5 cm size CLW seen on left side of the chin. Column No.20-Internal examination: Head: (1) About 4 x 3 cm size CLW seen on right parietal region of the scalp. It is bony deep and underline bone shows communcated fracture of 3 x 3 cm size (right parietal bone). (2) About 6.4 cm size CLW seen on left parietal eminence of the scalp. It is bony deep and star shape, underline based shows communated fracture of 4 x 3 cm size. (3) Defused subdural and subarachnoid haemorrhage seen. Brain matter soft and pale. Column No.24-Opinion as to cause or probable cause of death- Died due to head injury. 12. (2) About 6.4 cm size CLW seen on left parietal eminence of the scalp. It is bony deep and star shape, underline based shows communated fracture of 4 x 3 cm size. (3) Defused subdural and subarachnoid haemorrhage seen. Brain matter soft and pale. Column No.24-Opinion as to cause or probable cause of death- Died due to head injury. 12. P.W.5 and P.W.6 in his examination-in-chief and the gross has come out that the version of usage of stick in inflicting injuries on his uncle and brother both the deceased and has outrightly denied upon a confrontation to have stated in the complaint about carrying and usage of axe and dhariya of accused in commission of crime. Further P.W.1 during the course of investigation his further statement was recorded by investigating officer, in which he had stated that usage of axe and dhariya was mentioned by him since he was familiar and used to such articles being used in agricultural operations. While P.W.17 Ranjeet Chavda, PSI who registered the complaint in uncertain terms admits to have mentioned by the complainant about assailant accused armed with the weapon and also usage of the same in commission of crime. That above P.W.17 further admits to have seen incise wound on head of the deceased Gusa Saja and further injury on chin by sharp edge weapon and similar such injury on the back and right portion of the body. Such injuries were not noticed or mentioned in PM report Exh.42 of P.W.5. 12.1. Thus, the earlier version of the complainant in the complaint about seeing accused Naran Khimanand Gadhvi and Ramde Khimanand Gadhvi with dhariay and axe type of weapon and they were going on motorcycle and inflicted blows indiscriminately is completely changed in the evidence before the Court that he had seen both of them with sticks and admittedly from the scene of offence 3 pieces of bamboo sticks and one iron nail with blood stains were recovered and FSL report did not reveal any blood stains on those 3 pieces of sticks and iron nail. Therefore, the prosecution has failed to established origin of the incident and also circumstances, in which, the accused sustained injuries. 12.2. The evidence of P.W.6 complainant vide Exh.50 is doubtful, suffer from vital omissions and even material improvements and, therefore, untrustworthy ought not to have been relied on by learned trial Judge. Therefore, the prosecution has failed to established origin of the incident and also circumstances, in which, the accused sustained injuries. 12.2. The evidence of P.W.6 complainant vide Exh.50 is doubtful, suffer from vital omissions and even material improvements and, therefore, untrustworthy ought not to have been relied on by learned trial Judge. In addition to above, the distance between place of incident and house of the complainant is about 1 to 1.5 kms. And had gone at the place of offence running and within few minutes he had covered their distance. Such version is highly improbable. Likewise, having witnessed the scene of actually committing the crime to 8 to 10 seconds and that of quarrel had already started between the deceased and the accused persons and the complainant immediately left to call other persons all together established lack of regard to the truth and the version of accused receiving injuries was not stated by him. That emphasis led of nature of injuries and the evidence of P.W.14, P.W.15 undoubtfully reveal that it was a free fight between four persons and accused persons as well as deceased may have inflicted blows of sticks on each other and absence of blood stains marks to which reference is on the version of assault as referred to earlier conclusively make out a case that prosecution failed to prove its case beyond reasonable doubt, for which, they ought not to have been concluded. 13. We rely on the decision relied on by learned counsel Mr. A.D. Shah for the appellant in the case of Bhagwan Sahai and Anr. v. State of Rajasthan AIR 2016 SC 2714 where the prosecution has suppressed genesis of occurrence and also failed to explain injuries on person of accused entitled to get benefit of doubt. 14. Thus, such evidence whether can be said to be convincing, truthful, trustworthy and therefore reliable and to be believed and if it is so, learned trial Judge has performed his duties while analyzing such evidence keeping in mind law of evidence. That re-analysing of the evidence of P.W.6, P.W.5 P.W.17 as above is to be further tested in the context of nature of injuries upon accused and a cross complaint being 75 of 2006 filed by the accused which was not further investigated in view of death of accused therein. That re-analysing of the evidence of P.W.6, P.W.5 P.W.17 as above is to be further tested in the context of nature of injuries upon accused and a cross complaint being 75 of 2006 filed by the accused which was not further investigated in view of death of accused therein. That possibility of quarrel taking place between accused and the deceased is not ruled out even by the learned trial Judge. Further even P.W.6 in his cross-examination admits to have witnessed inflicting of usage of stick by inflicting blows by accused as well as deceased that injuries on the accused remained undisputed and all such injuries on both the accused were not simple but so described and deposed to by P.W.15. Injury on one of the accused resulting into fracture of the skull and was serious and being on vital part ought to have been explained by the prosecution. The burden in the present case is well discharged by the accused in their statement under Section 313 and also by supplementary explanation given in writing. 14.1. Following are the injuries on the accused Naran Khimanand and accused Ramde Khimanand. Injuries on person of accused Naran Khimanand: Exh.93-Entry from register. (1) 6 x 1 ½ x 1 ½ CLW on middle of scalp-8 stitches taken. (2) 4 x 2 cm bruise red at right below shine at middle of knee. (3) 3 x 2 cm red bruise over left below shine middle of knee. Injuries on Ramde Khimanand: (1) 1 x 1 ½ x 1 ½ CLW on just above left eye-brow. 2 stitches taken. (2) Right eye lower lid flap of skin 2 x 1 ½ x 1 ½ cm CLW (3) 1 x 1 ½ x 1 ½ CLW on right side parietal bone. 2 stitches taken. P.W.14/Exh.70 Dr.Kishorbhai Limbabhai Ramani. Injuries on Naranbhai Khimanand- Exh.71. (1) Stitched wound over scalp about 6 to 7 cm. Contused lacerated wound over both leg below knee joint. Exh.76-Medical certificate on injury to Ramde Khimanand. (1) Stitched wound over temporal region 2 cm size. (2) Stitched wound over forehead above left eyebrow 2 cm size. (3) Stitched wound over below and lateral to right eye. 14.2. (1) Stitched wound over scalp about 6 to 7 cm. Contused lacerated wound over both leg below knee joint. Exh.76-Medical certificate on injury to Ramde Khimanand. (1) Stitched wound over temporal region 2 cm size. (2) Stitched wound over forehead above left eyebrow 2 cm size. (3) Stitched wound over below and lateral to right eye. 14.2. Therefore, we are persuaded by the submissions made by the learned counsel for the defence that the prosecution has not come out with true version of the incident in question and has suppressed vital facts and under the circumstances benefit of doubt ought to have been given to the accused as the duty is cast upon the prosecution to prove its case beyond reasonable doubt. 15. That conviction and sentence secured simply on the basis of clothes recovered that of deceased and accused and blood group of deceased on clothes of accused containing ‘A’ group itself would be no ground to conclude guilt of the accused since quarrel and grappling preceding inflicting of injuries is not ruled out between the accused and deceased. Likewise, usage of recovery of stones and stick containing again ‘A’ group of the deceased in the backdrop of quarrel – will be a very weak circumstances to nail the accused. That, as against absence of any blood marks on another article ‘G’ of a stick and version about usage of a stick containing one end of a stick covered by iron rings is also not borne out from the record. The manner in which even the accused received injuries including that on head namely fracture of the skull and that aspect has completely remained un-investigated much less brought on the record. P.W.8, P.W.9 and P.W.10 are the witnesses either arrived after the incident was over or received information from P.W.6 and as held we are not inclined to believe the version of P.W.6 as truthful and trustworthy and not inspiring any confidence and reliable. Possibilities are not ruled out as submitted by learned counsel for the defence that testimonies of P.W.6 was in the town or not and the investigation carried out by P.W.17 and P.W.18 initially and thereafter. Possibilities are not ruled out as submitted by learned counsel for the defence that testimonies of P.W.6 was in the town or not and the investigation carried out by P.W.17 and P.W.18 initially and thereafter. Though entries were made in the station diary initially entered No.11 at Exh.96 firstly recorded the information given by the accused of assault by other party and thereafter entry No.15 on the same day refers information received about quarrel in which, deceased was assaulted by the accused. That investigation to be carried out by the investigating officer has to be transparent and impartial and lacuna and irregularity in the facts and circumstances of this appeal are such which cannot be burden or condoned particularly version of the eye witness falls flat on the ground in view of ample material contradictions, substantial improvement and major discrepancies. Resultantly, we find no reason to sustain the conviction of the convicts-original accused No.1 and 2 for the offence under Sections 302 read with Section 34 of Indian Penal Code and under Section 135(1) of Bombay Police Act. We, therefore, pronounce the acquittal of the convicts-original accused No.1 and 2 and allow Criminal Appeal No.2988 of 2008. The impugned order of conviction and sentence passed by learned Additional Sessions Judge, FTC No.1, Khambhalia in Sessions Case No.102 of 2006 against the convicts-original accused No.1 and 2 for the offence under Sections 302 read with Section 34 of Indian Penal Code and under Section 135(1) of Bombay Police Act is quashed and set aside. Appellants are already on bail and therefore, their bail bond and surety shall stand cancelled. 16. R & P be sent back to the trial court forthwith.