JUDGMENT : Rajendra Kumar, J. Accused-Appellant stood for trial in Sessions Trial No. 47 of 2007 (State v. Amar Nath Kewat, Case Crime No. 387 of 2006), under Sections 304 and 504 IPC, Police Station Mehdawal, District Santkabir Nagar, pending in the Court of Additional District and Sessions Judge, FTC, / Special Judge, Court No.3, Basti and came to be convicted by said Court, vide judgment and order dated 18.08.2010, sentencing him under Section 304 IPC to undergo ten years' imprisonment and fine of Rs. 1000/-. In default of payment of fine, he shall further undergo six months' additional imprisonment but acquitted under Section 504 IPC. Appellant has sought interference of this Court by filing this Jail Appeal from Jail through Jail Superintendent concerned. 2. Prosecution story, in brief, as come out from First Information Report (hereinafter referred to as 'FIR') and factual matrix of the case is that PW-1, Jang Bahadur (brother of deceased-Murali Kewat), submitted a written report, Ex. Ka-1, in the Police Station Mehdawal, District Santkabir Nagar, on 08.08.2006 stating that Murali Kewat withdrew certain money from post office Mehdawal. Out of said amount, he purchased a new bicycle for his son Amar Nath Kewat-accused. Accused-appellant was asking his father to handover balance amount which remained after purchase of the bicycle. Since the victim(deceased) was not giving the remaining money to accused-appellant, latter got annoyed and at about 10:00 pm hurling abuses, started assaulting his father Murali Kewat with Lathi. On alarm being raised, some persons reached there and Amar Nath Kewat stopped beating his father and fled away. Villagers wanted to take Informant's brother Murali Kewat to hospital for treatment but after some time he succumbed to his injuries. Dead body was lying in the house. 3. On the basis of written report Ex.Ka-1, chick FIR, Ex.Ka-13 was registered by PW-10, Constable Harishankar Rai of Police Station concerned, as Case Crime No. 387 of 2006, under Sections 304 and 504 IPC against accused-appellant. Entry of case was made in General Diary. Copy whereof is Ex. Ka-9. 4. Dead body was lying in the house. 3. On the basis of written report Ex.Ka-1, chick FIR, Ex.Ka-13 was registered by PW-10, Constable Harishankar Rai of Police Station concerned, as Case Crime No. 387 of 2006, under Sections 304 and 504 IPC against accused-appellant. Entry of case was made in General Diary. Copy whereof is Ex. Ka-9. 4. Immediately after registration of case, PW-11, SI Ghanshyam Sharma, commenced investigation, proceeded to spot, recorded statement of witnesses PW-1 and 2, held inquest over the dead body of Murali Kewat, prepared inquest report Ex.Ka-11 and other papers relating thereto, visited the place of incident, prepared site plan Ex.Ka-14, collected blood stained and simple earth from the spot and prepared memo Ex.Ka-17, recovered stick and Sickle allegedly used in commission of offence, prepared memo thereof and site plan of recovery Ex.Ka-15 and Ex.Ka-16 and after completing entire formalities of prosecution, submitted charge-sheet, Ex.Ka-15, against the accused-appellant. 5. PW-7, Dr. H.R. Yadav, conducted autopsy over dead body of deceased Murali and prepared postmortem report, Ex. Ka-3, expressing his opinion that death was possible about one day prior to postmortem due to Coma on account of ante-mortem head injury. Doctor found following ante-mortem injuries on the person of deceased, which read as under :- i. Traumatic swelling 6cm x 5cm over left side of head. On cutting hematoma present. ii. Lacerated wound 2cm x 1cm x bone deep over left ear. Hematoma present. iii. Abrasion 3cm x 1cm over left cheek. iv. Incised wound 2cm x 1cm x muscle deep over front of neck just below left side mandible. Hematoma present. v. Incised wound 2.5cm x 1/2cm x muscle deep over outer aspect of left arm. Hematoma present. 6. Case, being exclusively triable by Court of Sessions, was committed by Chief Judicial Magistrate concerned to Sessions Judge. 7. Trial Court framed charge on 30.03.2007 against accused-appellant under Section 304 IPC, which reads as under :- "CHARGE I, Piyush Kumar, Sessions Judge, Basti charge you Amar Nath Kewat as follows :- That you, on 7.8.2006 at about 10:00 p.m. in village Bairihawa within the circle of P.S. Menhdawal, District- Sant Kabir Nagar, caused the death of Murali Kewat with the intention of causing such bodily injury as was likely to cause death, and thereby committed an offence of culpable homicide not amounting to murder, punishable under Section 304 Part-I IPC and within my cognizance. And I hereby direct that you be tried on the said charge by the said Court." 8. Accused-Appellant pleaded not guilty and claimed trial. 9. In order to substantiate its case, prosecution examined as many as eleven witnesses in the following manner :- Sr. No. Name of PWs Nature of witness Paper proved 1 Jang Bahadur Fact Ex.Ka-1 and Ex.Ka-13 2 Ganga Dei Fact Nil 3 Kanhai Fact Ex.Ka-2 4 Rajendra Fact Nil 5 Harish Chandra Fact Nil 6 Surendra Fact Nil 7 Dr. H.R. Yadav Formal Ex.Ka-3 8 Const. Narvdeshwar Singh Formal Ex.Ka-2 and Ex.Ka-12 9 Const. Ram Sumer Yadav Formal Ex.Ka-2 and Ex. Ka-12 10 Const. Hari Shanker Rai Formal Ex.Ka-13 and Ex. Ka-9 11 SI Ghanshyam Sharma Formal Ex.Ka-14 to Ex.Ka-18 10. In Statement under Section 313, recorded by Trial Court, accused -appellant denied prosecution story in toto. Entire story is said to be wrong, he claimed false implication and produced defence evidence as DW-1 and DW-2. 11. Trial Court, after hearing learned counsel for parties and analysing entire evidence (oral and documentary) led by prosecution, found accused guilty, convicted and sentenced, as stated above. Feeling aggrieved and dissatisfied with the impugned judgement, appellant has filed this Jail Appeal from Jail. 12. Ms. Kalpana Singh, learned Amicus Curiae assailed order of conviction and sentence advancing following submissions :- i. There is no eye witness in the case. PW-1 and 2 did not support prosecution case and turned hostile. ii. PW-4, Rajendra, is alleged eye-witness but his evidence inspires no confidence. His presence on the spot is not natural. iii. There is no motive to accused-appellant to commit the present crime, alleged motive by prosecution is not proved by any cogent and convincing evidence. iv. Medical evidence does not go with the ocular version. v. Prosecution could not succeed to prove its case beyond reasonable doubt. vi. Trial Court did not appreciate evidence in right perspective and committed error in passing impugned order. 13. Learned AGA vehemently opposed submissions made by learned Amicus Curiae, and submitted that accused-appellant is named in FIR; PW-4, Rajendra, and other independent witness supported the prosecution case; Stick and Sickle used in commission of offence has been recovered from the possession of accused-appellant at his pointing out; prosecution proved its case beyond reasonable doubt and Trial Court has rightly convicted accused-appellant. Hence, appeal is liable to be dismissed. 14. Hence, appeal is liable to be dismissed. 14. Although time, date and place of death of victim and manner of injuries could not be disputed from the side of accused-appellant but according to learned counsel for accused-appellant, he is not responsible for committing murder of deceased-Murali Kewat. Even otherwise, time, date, place and death of deceased-Murali stand established from the evidence of prosecution witnesses, PW-1 to PW-5, PW-7 and PW-11. 15. Thus only question remains for consideration of Court is "Whether accused-appellant committed murder of his father (deceased-Murali Kewat) and Trial Court rightly convicted and sentenced him as stated above or not?" 16. Now, we may proceed to consider briefly the evidence led by prosecution and rival argument of both parties. 17. PW-1, Jung Bahadur, informant and alleged eye-witness deposed that deceased-Murali Kewat was his brother. On the day of incident, he had withdrawn money from post office Mehdawal. There was no dispute between Murali Kewat and accused-appellant-Amar Nath Kewat over demand of money. He does not know how Murali Kewat died. He further deposed that, On Ex.Ka-1, he did not put his signature before Police Station concerned and Police forcibly took his signature on this paper. In cross-examination, on being questioned by Court, he further deposed that his brother died and he informed Police about his death. Police took his signature on blank paper. Thus, witness did not support prosecution case and turned hostile. He was cross-examined but nothing could be elicited so as to disbelieve his statement. 18. PW-2, Smt. Ganga Dei, mother of deceased, deposed that deceased-Murali Kewat was her son. Accused-appellant did not kill him and there was no dispute between accused-appellant-Amar Nath Kewat and deceased-Murali Kewat. She cannot tell how Mural Kewat died. Witness turned hostile and was cross-examined by prosecutor. In cross-examination, she deposed that Police did not inquire her. She cannot tell how her statement was recorded by Police. She further deposed that Sundar Yadav Jhanik, Raksha Yadav killed his son, Murali Kewat, for which her son Jung Bahadur moved application to Human Right Commission. Lal Chand, Kanahai and Harish Chand were not present on the spot. 19. PW-1, Jung Bahadur, and PW-2, Ganga Dei, did not support prosecution and turned hostile. They withstood lengthy cross-examined but nothing material could be brought so as to support the prosecution. 20. Lal Chand, Kanahai and Harish Chand were not present on the spot. 19. PW-1, Jung Bahadur, and PW-2, Ganga Dei, did not support prosecution and turned hostile. They withstood lengthy cross-examined but nothing material could be brought so as to support the prosecution. 20. PW-3, Kanhai, deposed that in the fateful night, at about 10:00 pm, accused-appellant committed murder of his father Murali Kewat with Stick and Sickle. Police, on pointing out of accused-appellant, recovered Stick made of Bamboo from bushes of Bamboo before him and other persons, memo whereof, Ex.Ka-2, was prepared by Police, on which, he put his signature. In cross-examination, he deposed that he reached the spot; and there was nobody on the spot except Murali Kewat and his mother. From perusal of evidence, it appears that he is not an eye witness and he is only the witness of recovery of Lathi and Sickle. He admitted that when he reached the spot, PW-2, Smt. Ganga Dei, was present there. 21. PW-4, Rajendra, deposed that on the day of incident, there was a quarrel between victim-Murali Kewat and his son accused-appellant-Amar Nath Kewat; accused-appellant caused serious injuries to his father due to which, victim died. On the second day of incident, Police came to village and took dead body of Murali Kewat from village. He further deposed that when he reached, he saw accused-appellant-Amar Nath Kewat having a Lathi and assaulting his father with Stick and Sickle. He further deposed that incident was witnessed by PW-1, Jung Bahadur (brother of deceased), PW-2, Smt. Ganga Dei, (mother of deceased) and many persons of village. In cross-examination, he admitted that victim-Murali Kewat lived with his son (Amar Nath Kewat) in his house and her mother PW-2, Ganga Dei lived in the house of Bhagwan Das. On hearing noise, he reached on the spot. When victim-Murali Kewat died, Kanhai, Lal Chand, Harish Chandra, Surendra were also there and Jung Bahadur came thereafter. He admitted that Police recorded his statement in the same night of incident. 22. PW-5, Harish Chandra, deposed that, at about 10 pm, he was returning to his house, after easing natural call, and saw that accused-appellant-Amar Nath Kewat was coming with Lathi and something else toward bushes of Bamboo, saying that he has fixed his father (Pita Ko Thik Kar Diya Hai) and hide something in the bushes. 22. PW-5, Harish Chandra, deposed that, at about 10 pm, he was returning to his house, after easing natural call, and saw that accused-appellant-Amar Nath Kewat was coming with Lathi and something else toward bushes of Bamboo, saying that he has fixed his father (Pita Ko Thik Kar Diya Hai) and hide something in the bushes. After a while, he came to know that accused-appellant caused serious injuries to his father Murali Kewat with Stick and Sickle, due to which, victim died in the night. Incident was witnessed by Rajendra, Jung Bahadur, mother of victim and other villagers. Thus, it appears that this witness is also not an eye witness and he did not say anything about the incident. 23. PW-6, Surendra, deposed that at the time of incident, he was present in his house; on hearing scream of Ganga Dei (mother of Murali Kewat), when he went to spot, accused-appellant Amar Nath Kewat had caused injuries to his father Murali Kewat with Sickle and Stick; many persons of village reached there and saw accused-appellant with Sickle by which he attached victim; they could not apprehend accused due to fear and Murali Kewat died on the spot due to injuries of Sickle. In cross-examination, he stated that he did not go to spot nor saw the incident. This witness also did not support prosecution. His statement inspires no confidence. 24. PW-11 deposed that he commenced investigation of Case Crime No. 387 of 2006, recorded statement of witnesses, held inquest over the dead body, sealed it and sent for postmortem, prepared site plan Ex.Ka-14, collected blood stained, simple earth and submitted charge-sheet. 25. PW-1 and 2 are natural witnesses but they did not support prosecution case and turned hostile. PW-3, Kanahai, PW-5, Harish Chandra, PW-6, Surendra did not appear to be eye witness because they did not say that they have seen the incident or saw accused-appellant attacking victim. Only PW-4 alleged eye-witness, against accused-appellant is to be considered. PW-2 specifically stated that victim Murali Kewat was attacked by Sunder Yadav, Jhannik and Raksha Yadav. She further stated that Lal Chandra, Kanhai and Harish Chandra were not present on the spot. PW-1, brother of victim, also stated that victim was attacked by Sunder Yadav, Jhanik and Raksha Yadav. Both PWs did not speak about the presence of PW-4. PW-2 specifically stated that victim Murali Kewat was attacked by Sunder Yadav, Jhannik and Raksha Yadav. She further stated that Lal Chandra, Kanhai and Harish Chandra were not present on the spot. PW-1, brother of victim, also stated that victim was attacked by Sunder Yadav, Jhanik and Raksha Yadav. Both PWs did not speak about the presence of PW-4. PW-4 deposed that at the time of incident, he saw Stick and Sickle in the hands of accused. He further deposed that accused-appellant first attacked victim by Lathi and later with Sickle, which hit on the neck of victim. He admitted presence of Jung Bahadur and Ganga Dei on the spot but Ganga Dei did not prove presence of PW-4, Rajendra, on the spot. It appears that this witness happened to be a witness for some reasons best known to him. At times, he disputed his previous statement under Section 164 Cr.P.C. Admittedly, PW-4, is not a witness of locality where incident took place. Evidently, incident took place at the house of victim and PW-1 and 2, being brother and mother of victim are natural witness, who turned hostile. There is no other witness in support of PW-4 and her statement remain uncorroborated. 26. It is well settled that where on the evidence, two possibilities are available or open one which goes in favour of prosecution and other which benefits an accused, the accused is undoubtedly entitled to benefit of doubt. 27. In Bhagwan Singh & Others v. State of M.P., (2002) 4 SCC 85 , Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Court observed as under:- "7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided." (Emphasis added) 28. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided." (Emphasis added) 28. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) AIR SC 1622, Court said that at any rate, the evidence clearly shows that two views are possible - one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone appellant is entitled to benefit of doubt resulting in his acquittal. 29. In Kali Ram v. State of Himachal Pradesh, (1973) AIR SC 2773, Court made following observations: "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence." (Emphasis added) 30. Considering the entire facts and circumstances and evidence led by prosecution and legal proposition discussed herein before in entirety, we do not find any cogent and convincing evidence against accused-appellant to connect him with present crime and, in our considered opinion, accused-appellant is entitled to benefit of doubt and is liable to be acquitted. 31. Appeal is, accordingly, allowed. Impugned judgment and order dated 18.08.2010 passed in Sessions Trial No. 47 of 2007 (State v. Amar Nath Kewat, Case Crime No. 387 of 2006), under Sections 304 IPC, Police Station Mehdawal, District Santkabir Nagar, is hereby set aside. Appellant is acquitted of charges levelled against him. 32. 31. Appeal is, accordingly, allowed. Impugned judgment and order dated 18.08.2010 passed in Sessions Trial No. 47 of 2007 (State v. Amar Nath Kewat, Case Crime No. 387 of 2006), under Sections 304 IPC, Police Station Mehdawal, District Santkabir Nagar, is hereby set aside. Appellant is acquitted of charges levelled against him. 32. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court. 33. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action. 34. Before parting, we provide that Ms. Kalpana Singh, Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 11,500/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.