JUDGMENT : 1. The original accused-appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the judgment and order dated 01.09.2001 passed by the learned Additional Sessions Judge, Sabarkantha (hereinafter referred as “the learned Trial Court”) in Sessions Case No. 45 of 1998. 2. Heard learned learned senior Advocate Mr. BB Naik for the appellant- accused and APP Ms. Jirga Jhaveri for the respondent State. Order under Challenge: 3. Learned trial court has passed an order dated 01.09.2001, convicting the present appellant – Original accused under Section 235(2) of the Code for the offences punishable under Sections 307 of the Indian Penal Code (hereinafter referred to as IPC), sentencing 5 years of simple imprisonment and fine of Rs.2500/-, in default the accused has to undergo 6 months on simple imprisonment. The learned trial Court has further acquitted the appellant accused under Section 235(1) of the code for the offences punishable under Section 323,504 of the IPC. The trial court has ordered that the appellant is entitled to set of the period of detention which he has already undergone during the investigation and trial. Arguments for the accused 4. Learned advocate for the appellant has submitted that the impugned judgment and order is illegal, invalid and the findings are not based on the materials placed on record of the case. Therefore, the learned trial Court has committed grave error by passing the judgment and order. That the trial Court has not appreciated the evidence of the eye-witnesses in proper perspective. That the doctor has found CLW on the head of the injured complainant which could not be caused by the sharp edged instrument like axe. That the complainant has not stated in the complaint about the presence of his son Ashwin. That there are contradiction in the deposition of the complainant as well as the eye-witness. It is further argued that though the presence of independent witness in the vicinity of the scene of offence are available but no such witnesses were examined. 4.1 It is also argued that the complainant has not given any name in the history before the doctor and the complainant was not gone to the hospital with the police yadi. That the doctor of the Megraj village is not examined. The weapon and clothes are not sent to FSL. 4.1 It is also argued that the complainant has not given any name in the history before the doctor and the complainant was not gone to the hospital with the police yadi. That the doctor of the Megraj village is not examined. The weapon and clothes are not sent to FSL. That the weapon axe does not contain blood stain. Thus there is no corroborative evidence in this case. Further there is no explanation as regards to the delay in filing the FIR. 4.2 Learned advocate for the appellant has also argued that the prosecution has not established its case beyond any reasonable doubt, and he has relied upon the following judgments of the Apex Court, which will be discussed hereinafter. (A) 2019 (2) SCC 303 in the case of State of UP Vs. Wasif Haider and ors (B) 2019 (4) SCC 522 in the case of Digamber Vaishnav Vs. The State Of Chhattisgarh (C) 2019 (8) SCC 50 in the case of Anand Ramachandra Chougule vs Sidarai Laxman Chougala 4.3 The scene of offence is not identified by the eye-witness that the prosecution has no established the ingredients of the offence beyond any reasonable doubt. Further has requested to quash and set aside the impugned judgment and order and acquitted the appellant. Arguments of the prosecution. 5. Learned APP has argued that the order of acquittal passed by the learned trial Court is legal and valid and correct in the eyes of law. That the prosecution has examined the injured witness, eye-witness, medical officers as well as the panch witnesses and police officers. That the injured witness and eyewitnesses have supported the case of the prosecution. The delay in FIR is not fatal to the prosecution. Sureshbhai Shah has examined the injury to the complainant and that there is no need to examine other witnesses when the injured witness seem to be trustworthy and reliable. It is further stated that an FIR should not be an encyclopedia in which all the details are required to be mentioned by the complainant. 5.1 It is further argued that the clothes were not send to the FSL which would be said to be defect in the case of the prosecution. The trial court has appreciated the oral as well as the documentary evidence and came to the right conclusion that the offences punishable under section 307 of IPC is established. 5.1 It is further argued that the clothes were not send to the FSL which would be said to be defect in the case of the prosecution. The trial court has appreciated the oral as well as the documentary evidence and came to the right conclusion that the offences punishable under section 307 of IPC is established. She requested to dismiss the appeal. Facts of the case : 6. The original complainant- Jivabhai Devabhai Tarad has filed this complaint before the Meghraj Police Station on 15.09.1996, the said complaint was registered vide CR No.I-52/1996 for the offences punishable under Section 323, 326, 504 of IPC. 6.1 As per the complaint, the prosecution case is that the complainant has one brother they are doing agricultural work in their land. That the land of the accused are also situated adjacent to the land of the complainant. That the accused and his brothers were cutting the trees to clear the agricultural land. At about 02.00 pm Arvindbhai Sardarbhai, the brother of the accused came to the house of the complainant and asked to come to the farm to show the boundary where the tress are required to be cut. The complainant went to the farm with the brother of the accused. It is also stated that at that time his daughter Laximiben was also with him. 6.2 After reaching the farm he told to the accused that please do not cut the trees from the lower side and cut the trees from upper side. At that time appellant has instigated and abused him and told that he will cut the tress as per direction of his father and at the same time he has inflicted a blow of axe on the left side of head of the complainant. Therefore, there was chop in head and blood came from it. The accused has also inflicted second blow, then the complainant has raised his right arm so it was inflicted on the index finger of his hand and blood came out. The accused has also inflicted a blow on the right back side of complainant’s body, therefore, he was injured. It is further stated that his daughter intervene at that time the accused has inflicted blow by the back side of axe on the left shoulder of his daughter and given another blow on the back of the daughter. The accused has also inflicted a blow on the right back side of complainant’s body, therefore, he was injured. It is further stated that his daughter intervene at that time the accused has inflicted blow by the back side of axe on the left shoulder of his daughter and given another blow on the back of the daughter. At that time the brother of the accused Mr Arvindbhai has fetched the axe from the hands of the appellant-accused. The accused was run away and complainant was fall down due to head injury. That the daughter of complainant has shouted at that time the mother of the complainant Kamriben, her brother Valjibhai and his brothers wife Savitaben came there. Thereafter he has filed the complaint before the Meghraj police station. 7. After completing the investigation, the investigating officer has filed charge-sheet before the Chief Judicial Magistrate First Class Modasa and it was registered as Criminal Case No. 4032/1996. The case being sessions triable, the learned second judicial magistrate First Class Modasa has committed the case under Section 209 of the Code to the court of Sessions Modasa, Sabarkantha. The said committed case was registered as Sessions Case No. 45/1998. 7.1 The learned trial Court has framed the charge for the offence punishable under Section 307, 323 and 504 of IPC on 22.11.1999, vide Exh.4 against the present appellant-accused. The prosecution has examined 8 witnesses and produced documentary evidence before the trial court. The learned trial court has recorded further statement wherein the appellant has denied the case of the prosecution and stated to fetch away the land, complainant has filed the false case. After hearing of the learned advocate for the defence and learned APP the trial court has passed impugned judgment and order. General principles for appreciation of evidence. 8. Before discussing the evidence on merit. Learned APP has cited certain judgments wherein the Hon'ble Supreme Court has derived certain guidelines for appreciation of evidence which reads as under: (A) AIR 1983 SC 753 judgment delivered in the case of Bhogin Bharwada Vs. State of Gujarat which reads as under: “5. Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. State of Gujarat which reads as under: “5. Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. 6. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. 6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses.” (B) AIR 1973 SC 2622 in the case of Shivaji Sahebrao Bobade & Anr vs State Of Maharashtra “Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are. always good regardless of justice to the 493 victim and, the community,' demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author(1) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say', with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the, guilty no less than from the conviction of the innocent. .."In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents. We have adopted these cautious in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago. (C) AIR 1988 SC 1998 in the case of State Of U.P vs Anil Singh. "14. In Abdul Gani v. State of Madya Pradesh AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff. 15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to PG NO 618 remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. It is necessary to PG NO 618 remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.” (D) AIR 1993 CLR 706 in the case of State Of West Bengal vs. Orilal Jaiswal And Another “15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in the civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498A I.P.C. and Section 113A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubt must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Eater v. Bater (1950) 2 All ER 458 at p.459 has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. 16. In Gurbachan Singh v. Satpal Singh and Ors., Mr. Justice Sabyasachi Mukharji (as he then was) has very rightly indicated that the conscience of the Court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.” 9. In criminal jurisprudence the prosecution has to prove its case by leading legal, relevant, cogent and reliable evidence. At the time of recording evidence, it may be depicted as oral evidence (Direct and indirect), documentary evidence (primary and secondary), real evidence (muddamal/thing). At the time of appreciation of evidence, the evidence on record may be depicted as substantive evidence, circumstantial evidence, corroborative evidence etc. Now what is substantive evidence? The evidence by which main fact in issued is decided, it can be named as substantive piece of evidence. Whether the particular evidence is substantive evidence or not that is required to be decided, considering the nature, effect and impact of evidence on the case on hand. The example of the substantive evidence are the evidence of injured witness, evidence of eye witness etc. 9.1 In this case the substantive piece of evidence in form of injured witness and eyewitnesses which is produced by the prosecution. There is no corroboration required if the evidence is reliable and trustworthy. In this case medical evidence is also supported to the version of the injured witness. 10. The prosecution has examined PW-1 Jivabhai Devabhai at Exh.11 who is the complainant and the injured witness. He has meticulously stated in his deposition that at the time of incident the crop maze and tuver was cultivated, there were some trees near his farm. That Mr Arvindbhai the brother of the accused came to call him at about 2 o'clock. It is sated that he and his daughter went thereafter his son also came at the place of incident. Arvindbhai Sardarbhai has taken him to the waste land near his farm. At that time the appellant accused Ishwarbhai Sardarbhai was present in the farm and he asked to show the boundary of the farm. It is sated that he and his daughter went thereafter his son also came at the place of incident. Arvindbhai Sardarbhai has taken him to the waste land near his farm. At that time the appellant accused Ishwarbhai Sardarbhai was present in the farm and he asked to show the boundary of the farm. The complainant has stated to cut the trees from the upper side and don't cut the trees from the lower side. Accused had axe in his hand. The accused has inflicted blow of axe on the head of the complainant and the at the time of inflicting second blow, the complainant tried to stop by raising his arm, at that time he has inflicted on index fingure. It is also stated that the back side of the axe had inflicted on the head of the complainant. At that time Laxmiben the daughter of the complainant came for rescue. The appellant has inflicted blow of stick part of the axe to Laxmiben. His daughter has shouted therefore, her grandmother Kamliben came there. The complaint was filed at the Modasa Police station. Complaint was shown to him during the deposition and he has identified his signature and it was exhibited at Exh.12. He has further stated that he has taken at Modasa hospital and admitted for 10 days as indoor treatment. The complainant has identified the accused before the Court. He is also identified the muddamal axe before the Court. 10.1 This witness is cross-examined by the defence advocate and he sticked to the version as stated in the chief-examination. He has also denied the suggestions made by the defence advocate and has also denied that Arvindbhai Valjibhai was involved to inflict the blow to Sardar at that time he was injured. It is denied that to snatch away the lawn of accused, the complainant has filed false complaint. 11. The prosecution has examined PW-2 Laxmiben Jivabhai at Exh.22 she is the eye witness and she is the daughter of the complainant. Complainant has stated that she was with him. She has stated in her deposition that on that day of the incident her father and her brother were present at home. At about 2 o'clock Arvindbhai who is the brother of the appellant was came to call her father and asked to come with him to the field. Complainant has stated that she was with him. She has stated in her deposition that on that day of the incident her father and her brother were present at home. At about 2 o'clock Arvindbhai who is the brother of the appellant was came to call her father and asked to come with him to the field. It is said that the appellant was cutting the trees and he is calling the complainant. Thereafter, she went to the farm with her father and brother. When they reached to he farm, the accused was cutting the trees. It is said that her father told to the accused that do not cut the trees from upper side at that time the accused was instigated and inflicted the blow of axe on the head of her father. Second blow was also inflicted on the index finger of the hand of the father. Thereafter, she shouted and therefore the accused has inflicted blow by the backside of the axe. It is further stated that when she shouted her grandmother and aunt came to the place. She has identified the accused present in the Court and she has also identified the muddamal axe. It is stated that the same axe was with the accused. This witness is also cross examined by the defence advocate. She remain adhere to the contents of the chief-examination and she has denied the suggestions made by the learned advocate for the defence. Nothing is stated which can damage the case of the prosecution. 12. Prosecution has examined witness PW-3 Ashwinkumar Jivabhai Tarad at Exh 23, who is the son of the complainant. He is the eye-witness, he has stated that his grandmother and his sister with his father were present. When Arvindbhai came to their house and told that his bother is cutting the trees and calling them. It is stated that he and his father and his sister went to the farm where the accused Ishawarbhai, was cutting trees in the farm. It is also stated that his father told to the accused that please cut the trees from upper side and not from the lower side. At that time accused was inflicted blow of the axe on the head of his father and when his sister shouted, at that time his uncle and aunt were came to the place. It is also stated that his father told to the accused that please cut the trees from upper side and not from the lower side. At that time accused was inflicted blow of the axe on the head of his father and when his sister shouted, at that time his uncle and aunt were came to the place. He has identified the accused before the court and also identified the weapon axe which was shown to him. This witness is also cross examined by the defence advocate and he has denied the suggestions made by the defence. It is pertinent to note here that at the time of examining the witness he was 12 year old when the incident took place 4 years before he was examined. 13. The prosecution has examined PW-4 Virjibhai Talubhai at Exh.24, this witness is the panch witness of panchnama of the scene of offence. He has stated in his deposition that he was called at the place of offence by the police. The cut trees were lying there. Blood was also found. The police has collected the soil which is stained by the blood. The police has then prepared the panchnama. He has identified his signature in panchnama at Exh. 25. The prosecution has cross-examined this witness, nothing reveal adverse to the prosecution case. 14. The prosecution has also examined PW-5 Ramanbhai at Exh.26 who is the panch witness of the recovery panchnama. It is stated by him that the clothes i.e. pant and shirt of the injured complainant Jivabhai was taken into possession and the same was produced by Laxmiben. He has identified the clothes (muddamal) and also identified his signature on the panchnama. The panchnama is at Exh.27. The defence has cross-examined this witness. Nothing reaveled adverse to the prosecution case. 15. The prosecution has examined PW-6 Ramanbhai Lalabhai at Exh.34. He is also the panch-witness of the recovery panchnama. He has not supported the case of the prosecution as he has turned hostile. He has identified his signature on the panchnama. 16. The prosecution has examined PW- 7 Bhimjibhai Sukhabhai Ninama at Exh. 36. He is the Investigating officer the complaint was handed over to him which was recorded and registered by PSO. It is stated that he has prepared the panchnama of the scene of offence and collected the blood stained sample of soil. 16. The prosecution has examined PW- 7 Bhimjibhai Sukhabhai Ninama at Exh. 36. He is the Investigating officer the complaint was handed over to him which was recorded and registered by PSO. It is stated that he has prepared the panchnama of the scene of offence and collected the blood stained sample of soil. He has recorded the statement of the complainant and witnesses. He has also prepared recovery panchnama that the pant and shirt of the complainant were collected and the same was handed over by Laxmiben. This witness has identified the signature of the panchas and his signature on the panchnama. He further stated that the accused has produced the axe weapon which was collected. The weapon was shown to witnesses. The same was identified by the witness before the Court. It is stated that the accused was released on anti-bail. After completing the investigation charge-sheet was filed. This witness is also cross- examined by the witness. He has admitted that there are three to four houses were situated near the place of incident. It is also admitted that the place of incident was on hill and stone land. Medical evidence. 17. The prosecution has examined PW-8 Dr. Sureshbhai Shah At Exh. 37. It is stated in his deposition that he was done MS in surgery and he is serving in Public hospital Modasa. On 16.09.1996 when he was on duty the complainant Jivabhai was brought to the hospital who was injured, has given history that he was injured by axe. He was referred by the Meghraj dispensary. Medical officer has send a letter addressing to him. He examined the complainant at 2.45 am. That there was wound on his head. There was also injury on the index finger of the right arm of the complainant. He has taken an X-ray where it was found that a fracture on the left side of the skull. The patient was then admitted for 8 days as an indoor patient. The injury on head was 6/4 centimeters and the injury was serious. The witness was then shown the muddamal axe and opined that injury can be possibly caused by this weapon. He has issued certificate and identified the signature and handwriting on the documents. The original documents were produced at Exh.38 and Exh.39. He has also produced yadi at Exh. 40. The witness was then shown the muddamal axe and opined that injury can be possibly caused by this weapon. He has issued certificate and identified the signature and handwriting on the documents. The original documents were produced at Exh.38 and Exh.39. He has also produced yadi at Exh. 40. 17.1 During cross-examination he has stated that is not true that the injury stated by him is not sufficient for causing death. The death can be caused. This witness is also cross-examined by the defence advocate he had denied the suggestions made by the defence advocate. Reply of arguments of accused. 18. Learned advocate for the appellant has stated that there is no name of Ashwinbhai, son of the complainant mentioned in the complaint and the complainant has stated first time in the deposition. Against this APP has submitted that FIR is not required to be encyclopedia. 18.1 The complainant and eye-witness have stated in the deposition about the presence of Ashvinbhai. As per the deposition Ashwinbhai has also stated that he was present at the time of incident. At the time of deposition age of Ashwinbhai is 12 year who was a child witness. The appreciation of evidence on one side he is innocent so he can be reliable witness and on other side he can be tutored on perusing the deposition it does not appear that this witness is tutored. That the prosecution has established his presence. 19. Learned advocate for appellant has submitted that there is no blood stain on the weapon axe. The incident took place on 15.09.1996 the axe was recovered on 03.10.1996. It is true that there was no blood stain on axe as per the panchnama. To have blood stain on axe can be said corroborative piece of evidence. Here in this case, the evidence of the eye-witness and the injured witness appears trustworthy and there is no need of corroboration. If there is no blood stain or even absence of the weapon conviction can be held. 19.1 This court has come across the case of State of Rajasthan Vs. Arjun Singh, 2011(9) SCC 115 wherein Apex Court has held as under :- “10. As rightly pointed out by the learned Additional Advocate General appearing for the State that mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Arjun Singh, 2011(9) SCC 115 wherein Apex Court has held as under :- “10. As rightly pointed out by the learned Additional Advocate General appearing for the State that mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, blood stained clothes etc. cannot be taken or construed as no such occurrence had taken place. As a matter of fact, we have already pointed out that the gun shot injuries tallied with medical evidence. It is also seen that Raghuraj Singh and Himmat Raj Singh, who had died received 8 and 7 gun shot wounds respectively while Raj Singh (PW-2) also received 8 gun shots scattered in front of left thigh. All these injuries have bee noted by the Doctor (PW-1) in his reports Exs. P1-P4.” 20. It is further argued that the weapon and clothes were not send to forensics laboratory for scientific evidence. It is true that the clothes pant and shirt were stained with blood. The said muddamal were not send to FSL. That may be said to be defect of investigation. This Court has come across the case of Karnel Singh Vs. State of MP, 1995(5) SCC 518 where in Apex Court has held as under : “5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.” 20.1 If the clothes were send to the FSL and the blood group is identified, the same evidence can be said to be corroborative piece of evidence. Due to defensive investigation the accused cannot be acquitted. Considering the evidence of inured witness and medical witness it is not established that the prosecution case is doubtful. 20.2 (1999) 9 SCC 525 in the case of Leela Ram Vs. State of Haryana & Anr. Due to defensive investigation the accused cannot be acquitted. Considering the evidence of inured witness and medical witness it is not established that the prosecution case is doubtful. 20.2 (1999) 9 SCC 525 in the case of Leela Ram Vs. State of Haryana & Anr. which reads as under : “Before however, proceeding with the matter on the counts as above, it would be convenient to note another aspect of the matter, namely, the observations pertaining to the investigation by the investigating agency. It is now a well-settled principle that any irregularity or even an illegality during investigation ought not be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring to a decision of this Court.” 21. The appellant has argued that the complaint was recorded at the police station. That it is required to be recorded stated in prescribed form under sec 154 of CrPC but the compliant was recorded on a pain paper. 21.1 It is true that the police station officer has not examined but at the same time defence has not asked any question to investigating officer, as regards to the prejudice caused to the accused for not recording the complaint in a prescribed format. On perusing the R&P it appears that the complaint was thereafter record in the prescribed form under section 154 of CrPC which is produced at page.9 of file 2 of R&P. It also bares the signature of the complainant and the police officer. The complaint was forwarded to JMFC Modasa 16.09.1996, which is within the time limit. I find that there is no illegality in recording the complain on plain paper and thereafter in prescribed form under section 154 of the code. 22. Learned advocate for the appellant has also argued that the doctor who has given treatment to the complainant at Meghraj hospital is not examined by the prosecution. 22.1 The prosecution has examined Dr. Sureshbhai Shah at Exh.37 wherein he has stated in his examination-in-chief that the patient was referred by the doctor of Megrajh Prathmik Center and has sent the reference letter with the patient. The medical letter is produced at Exh. 22.1 The prosecution has examined Dr. Sureshbhai Shah at Exh.37 wherein he has stated in his examination-in-chief that the patient was referred by the doctor of Megrajh Prathmik Center and has sent the reference letter with the patient. The medical letter is produced at Exh. 39 page 99 of R&P, wherein it is stated that “herewith I refer a patient name Jivaji aged 32 year old having the head injury by sharp instrument (kuhadi) & also there is involvement of frontal bone. So please admit the patient and do needful for him and give expert opinion for legal reference [Police station MCL No. 52/96 IPC 323,504 and 326] Note: TT injection is given”. It appears from the letter that the medical officer has given only TT injunction and referred the patient to chief medical officer, Sarvajanik Hospital Modasa. Therefore, he is not required to be examined. 23. Learned advocate for the appellant has also argued that no independent witness has been examined. On perusing charge sheet there are more than 20 witness cited. The prosecution has examined 8 witnesses to prove its case. It is a prerogative of prosecution by which evidence the prosecution case is to be proved. The prosecution has examined the injured witness and medical witness and has produced sufficient documentary evidence to prove its case. 23.1 This court has come across the case, 1985(2) GLR 994 in the case of State Of Gujarat vs Manzoorali Alibax And Ors. which reads as under: “Under the Criminal Procedure Code which provides exhaustive procedure for conducting criminal trial, there is no provision which empowers the Court to direct the prosecution to examine certain witnesses as prosecution witnesses. Section 231 of the Code 231(1) provides that on the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. This subsection does not provide that prosecution is bound to examine those witnesses who may not support the prosecution. It only prescribes that the Judge shall take all such evidence produced in support of the prosecution. Subsection (2) gives discretion to the Judge for deferring the cross-examination or for recalling any witness for further cross-examination. There is no other provision which says that the Court is entitled to direct the prosecution to examine witnesses as prosecution witnesses. It only prescribes that the Judge shall take all such evidence produced in support of the prosecution. Subsection (2) gives discretion to the Judge for deferring the cross-examination or for recalling any witness for further cross-examination. There is no other provision which says that the Court is entitled to direct the prosecution to examine witnesses as prosecution witnesses. Under Section 233 accused is entitled to adduce any evidence he may have in support of his defence. Section 311 is a general provision which empowers any Court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. This section confers a wide discretion on the Court to act as the exigencies of justice require. It can be concluded that it is a matter for the discretion of counsel for the prosecution to decide who and how many witnesses should be examined for proving the prosecution case. The prosecution cannot be compelled to call witnesses irrespective of considerations of number and of reliability or that a prosecution ought to discharge the functions both of prosecution and defence. In any case it cannot be compelled to examine a witness material 'for the defence or to prove alibi and a person not essential for unfolding the prosecution case. If some witnesses are not examined, at the most the Court is entitled to draw in appropriate circumstances adverse inference. This does not mean that the prosecution can hide the material collected by it during investigation from the Court and in that case it would be open to the Court or to the defence to examine those persons either as Court witnesses or defence witnesses.” 24. Learned advocate for the appellant has also stated that as per panchnama of scene of offence, the place is identified by the witness Maganbhai Devabhai Tharad is not examined. On perusing the charge sheet Maganbhai Devabhai Tharad is shown as witness and the statement is record. So he is the witness of the prosecution. Due to non examination of the said witness it is no fatal to the prosecution case. On perusing the charge sheet Maganbhai Devabhai Tharad is shown as witness and the statement is record. So he is the witness of the prosecution. Due to non examination of the said witness it is no fatal to the prosecution case. Panchnama of scene of offence is exhibited at Exh.25, wherein it is state that Maganbhai Thard has shown the place of offence. PW-4 Virjibhai is examined at Exh. 24, No effective cross examination is done by defence advocate. No question as regards o who has shown the place of offence is shown is asked to panch witness. Therefore, the argument is not impressive. 25. (A) 2019 (2) SCC 303 in the case of State of UP Vs. Wasif Haider and ors., “24. In the present case, the cumulative effect of the aforesaid investigative lapses has fortified the presumption of innocence in favour of the respondent-accused. In such cases, the benefit of doubt arising out of a faulty investigation accrues in favour of the accused. 25. Although we acknowledge the gravity of the offence alleged against the respondent-accused and the unfortunate fact of a senior official losing his life in furtherance of his duty we cannot be expected to relinquish his innocence at the hands of an inefficacious prosecution, which is ridden with investigative deficiencies. The benefit of doubt arising out of such inefficient investigation, must be bestowed upon the accused.” This judgment is not applicable to the present case because the evidence adduced by the prosecution does not lapse with the presumption of innocent accused. This case is of circumstantial evidence whereas in the present case the injured witness supported by the medical evidence is produced by the prosecution. (B) 2019 4 SCC 522 in the case of Digamber Vaishnav . vs The State Of Chhattisgarh “17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745, this Court has held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt. 18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406 , this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt. 18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406 , this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital 9 distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense". 19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. 19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.” This cited judgment is not applicable as the ratio laid down in the judgment is not applicable with the present case. In this case two views are not possible i.e., evidence adduced in the case one binding to the guilt of the accused and the other is innocent and the cited judgment is of circumstantial evidence, whereas in the present case substantive piece of evidence of injured witness is produced by the prosecution. (C) 2019 8 SCC 50 in the case of Anand Ramachandra Chougule vs Sidarai Laxman Chougala. “10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt. 11. The fact that a defence may not have been taken by an accused under Section 313, Cr.P.C. again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 , this Court observed: “28…When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.” The ratio laid down in the cited judgment is not helpful to the accused because the cited judgment the defence is raised of preponderance of probability. In the present case complainant tried to snatch away the land is raised as the defence. The suggestion made by the learned advocate for the defence as regards to the defence taken by the accused is denied. No more evidence is produced as regards to the defence of the accused except suggestion made in the cross-examination. In the present case, defence taken by the accused is that, the false complaint is filed by the complaint to snatch away the land. No positive evidence is produced by the accused during the trial. The only suggestions were made is during the cross-examination of the complainant. The suggestions made in the cross examination is not an evidence. 26. In view of the evidence discussed as above. The prosecution has examined the complaint who is the injured witness, Laxmiben and Ashwinbhai as eye-witness. The evidence of injured witness and eye witness are substantive piece of evidence by which, the prosecution has established its case these witnesses are reliable and trustworthy. There is no need of corroborative piece of evidence but prosecution has examined medical witness with supporting documentary evidence. Thus prosecution has established its case beyond any reasonable doubt. 27. In view of the above facts and circumstances of the case, I am of the view that prosecution has established by substantive piece of evidence that, appellant accused has acted with a knowledge under the circumstances he has given blow to the complainant such blow is sufficient to cause death. If death is caused he would be guilty thus ingredients for the offence punishable under Section 307 of the code is established. 28. I am of the view that the learned trial Judge has rightly convicted the appellant accused for the offence punishable under Section 307 of IPC and acquitted the accused for the offence punishable under section 323, 504 of IPC. The appeal is required to be dismissed, hence the following order is passed. FINAL ORDER (I) The present conviction appeal filed by the appellants-accused fails and hereby dismissed. The appeal is required to be dismissed, hence the following order is passed. FINAL ORDER (I) The present conviction appeal filed by the appellants-accused fails and hereby dismissed. (II) The judgment and order dated 01/09/2001, passed by the learned Additional Sessions Judge, Sabarkantha Camp at Modasa in Sessions Case No.45 of 1998 convicting the appellant-accused under Section 235(2) of the Code for the offence under Section 307 of the IPC and imposing sentence of 5 (Five) years Simple Imprisonment and fine of Rs.2500/- (Rupees Two Thousand Five Hundred Only), in default to undergo further 6 (Six) months of Simple Imprisonment and acquittal order for the offence under section 323 and 504 of the IPC are hereby confirmed. (III) The bail bond of the appellant-accused stands cancelled and the appellant-accused be taken into custody to undergo the remaining sentence. (IV) The appellant-accused is entitled to set off for a period of detention already undergone during the investigation and trial. (V) The appellant-accused shall surrender within 45 days from today, failing which, the Trial Court shall issue non-bailable warrant to proceed for execution of sentence in accordance with law. (VI) Registry is directed to send copy of judgment to the concerned trial Court for certification under Section 388 of the Code. (VII) Record and proceedings be sent back to the Court concerned forthwith.”