JUDGMENT Mohammad Nawaz, J. - This appeal is preferred by accused Nos.1 and 3, challenging their conviction and sentence passed in Sessions Case Nos.405/2006 and 723/2006 on the file of the Court of Fast Track at Bengaluru, wherein the learned Sessions Judge by Common Judgment and Order dated 25.06.2010/30.06.2010 has convicted and sentenced accused Nos.1 and 3 for the offence punishable under Sections 120-B, 307 r/w. 34 of IPC. 2. During the pendency of this appeal, it was reported by the learned High Court Government Pleader that accused No.1-Mohd. Asgar Pasha @ Asgar Pasha died on 25.09.2017, as such this Court vide Order dated 28.03.2019 dismissed the appeal, in so far as accused No.1 is concerned, as abated. Hence, it is necessary to deal this appeal in respect of accused No.3-Mubarak, s/o. late Mohd. Saleem. 3. I have heard the learned HCGP. 4. The case of the prosecution is that the first informant Shoaib [P.W.2] is a resident of Koramangala and he was prosecuting his studies in I PUC at Krupanidi College. On 31.01.2005, at about 8.45 p.m., while he was in his house along with his friend by name Monish [P.W.5], his friend by name Lathif [A2-juvenile] called him on his mobile phone and told that he has a mobile phone for sale and as Monish was willing to purchase a mobile phone, asked him to come and see the mobile phone. The first informant along with Monish went near the bus stop located near Adugodi Police Quarters on a motorbike of Monish. Lathif came to the said place along with Mubarak [A3]. Thereafter, Lathif left the place along with Monish in his bike on the pretext of showing the mobile phone to Monish by leaving the first informant in the company of Mubarak. Thereafter, Mubarak [A3] took the first informant inside the Police Quarters and while they were sitting near the water tank located in the middle of the Police Quarters, at about 9.30 p.m., two unknown persons came there and asked the first informant as to why he is sitting in their place. Accused No.3 spoke to them and gave some signal. Apprehending some danger the first informant tried to leave that place. At that time, one of the accused slapped him. Accused No.3-Mubarak instigated accused No.1 by name Asgar not to leave him. Accused No.3 spoke to them and gave some signal. Apprehending some danger the first informant tried to leave that place. At that time, one of the accused slapped him. Accused No.3-Mubarak instigated accused No.1 by name Asgar not to leave him. Accused No.3 and accused No.4 by name Afroz Pasha held the first informant tightly and accused No.1 with an intention to murder him, gave a blow on his neck with a razor and caused injuries to his throat. When he shouted for help, all the 3 persons fled away from the spot. Thereafter, he went to Adugodi Police Station. The Police took him to the Hospital and after treatment, he returned back to the Police Station and lodged the complaint, which was registered in Crime No.35/2005 of Adugodi Police Station against 3 persons for the offence punishable under Sections 307 r/w. 34 of IPC. During the course of investigation, the accused were arrested. Since, Lathif [A2] was a juvenile, he was produced before the Juvenile Justice Board. After conclusion of the investigation, charge-sheet was filed against the accused for the offences punishable under Sections 120-B, 109, 323 and 307 r/w. 34 of IPC. The case was numbered as C.C. No.16920/2005. Since only the appellant-accused No.3 appeared before the learned Magistrate, warrant was issued to the other accused. Thereafter, case was split-up and committed to Sessions Court. Subsequently, split-up chargesheet was filed against accused Nos.1 and 4 and it was registered in C.C. No.9010/2006. Accused No.1 came to be arrested and again the case was split-up against accused No.4. Accused No.1 was also committed to Sessions Court. Charges were framed against the accused for the offence punishable under Section 307 of IPC and additional charge was framed under Section 120-B of IPC. Initially, the case against accused No.3 was tried in S.C. No.405/2006. Against accused No.1 the trial was held in S.C. No.723/2006. The evidence was recorded in both the Sessions Cases. Learned Sessions Judge by a Common Judgment and Order dated 25.06.2010 convicted both accused Nos.1 and 3 for the offences punishable under Sections 307 and 120-B of IPC. Accused No.1 was sentenced to undergo imprisonment for a period of 5 years and to pay a fine of Rs.4,000/- for the offence punishable under Section 307 of IPC and in default to pay the fine, to further undergo simple imprisonment for 3 months. Accused No.1 was sentenced to undergo imprisonment for a period of 5 years and to pay a fine of Rs.4,000/- for the offence punishable under Section 307 of IPC and in default to pay the fine, to further undergo simple imprisonment for 3 months. He was sentenced to undergo imprisonment for a period of 2 years and to pay a fine of Rs.1,000/- for the offence punishable under Section 120-B of IPC and in default to pay the fine, to further undergo simple imprisonment for one month. Accused No.3 was sentenced to undergo imprisonment for 3 years and to pay fine of Rs.4,000/- for the offence punishable under Section 307 of IPC and in default to pay the fine, to further undergo simple imprisonment for 3 months. He was sentenced to undergo imprisonment for a period of 2 years and to pay fine of Rs.1,000/- for the offence punishable under section 120-B of IPC and in default of payment of fine, to further undergo simple imprisonment for one month. Aggrieved by the aforesaid conviction and sentence passed by the learned Sessions Judge, present appeal is preferred. 5. I have perused the material on record including the impugned Judgment and Order of conviction and sentence passed by the trial Court. 6. Before the trial Court, the prosecution has examined P.Ws.1 to 10 and got marked Exs.P1 to 5 and M.Os. 1 and 2 in S.C. No.405/2006. 7. P.W.1-Farooq is the panchwitness to the seizure of M.O.1-razor, which was seized under a mahazar-Ex.P1. The said witness has deposed that on 02.02.2005, Police have conducted a mahazar. One Asgar [A1] was with the Police. He showed the place where razor was thrown. The Police seized the said razor. Razor was marked as M.O.1. 8. P.W.2-Syed Shoiab Ahamad is the victim and he is the first informant. According to him, on 31.01.2005 at about 20.45 hours, Monish [P.W.5] came to his house. When he was in his house, he received a phone call from Lathif [A2- juvenile]. The said Lathif informed over phone that some mobile phones are for sale. Accordingly, he along with Monish went near Adugodi Police Quarters on the bike of Monish. There they met Lathif. Mubarak [A3] was with Lathif. Lathif introduced him. Thereafter, Lathif asked him to stay there with Mubarak and went along with Monish to bring the mobile phone. The said Lathif informed over phone that some mobile phones are for sale. Accordingly, he along with Monish went near Adugodi Police Quarters on the bike of Monish. There they met Lathif. Mubarak [A3] was with Lathif. Lathif introduced him. Thereafter, Lathif asked him to stay there with Mubarak and went along with Monish to bring the mobile phone. After 30 minutes, when he told Mubarak that he will wait for Monish on the road, Mubarak made some sign to two persons passing by. As soon as he got up to leave that place, Mubarak and two persons suddenly attacked him. Mubarak [A3] held his right shoulder, Asgar [A1] who was armed with a razor caused a cut injury on his neck. They snatched his mobile phone from his pocket and started to run away. He chased them. Two persons who were passing on the road caught hold of Asgar [A1] and they took Asgar and him to the Police Station. The Police referred him to Sanjay Gandhi Hospital. He has further stated that the Police recorded his oral complaint as per Ex.P2. Further, on the next day he went to the Police Station and handed over his blood-stained T-shirt and thereafter, the Police took him to the scene of occurrence from where they seized the razor. On 02.02.2005 his further statement was recorded. On that day, Mubarak [A3] was in Police Custody. He identified M.O.1 as the razor from which he was attacked by Asgar [A1]. Blood-stained T-shirt is marked as M.O.2. 9. P.W.3 is one Syed Waseem Ahamed. According to him, on 31.01.2005, at 21.45 hours, when he was along with his friend Mansoor near a Kalyana Mantapa in Koramangala, Lathif [A2-juvenile] and Monish [P.W.5] came there on a motorbike. Lathif got down and called him to talk to him. He appeared to be frightened. On the next day, when he contacted the mother of the victim, he came to know that the victim Shoaib was attacked by Lathif [A2-juvenile] and a friend of Lathif. 10. P.W.4-Mohamad Nawaz has stated that on 31.01.2005 at 8.00 p.m., when he was along with his friend Xavier near Adugodi Bus Stop, he over heard 4 persons conspiring to eliminate someone. When they were near the quarters, they heard some screaming sound. They went near the spot and saw 3 persons assaulting a boy. One person was attacking him with a razor. When they were near the quarters, they heard some screaming sound. They went near the spot and saw 3 persons assaulting a boy. One person was attacking him with a razor. When they went towards the spot, those 3 persons spared the boy and fled away. Thereafter, they took the boy to Adugodi Police Station. He is also a panch-witness to Ex.P3, under which the blood-stained T-shirt of the injured was seized. 11. P.W.5-Monish Naidu has stated that in the year 2004, there was a small quarrel between P.W.2-Shoaib and Lathif [A2-juvenile] regarding a mobile phone. Thereafter the matter was settled. In the month of January, 2005, Shoaib informed him that some mobile phones are available for sale. On 31.01.2005 while he was along with Shoaib, Lathif called him on phone and informed him about the mobile phone for sale. He asked him to meet him near Adugodi Police Quarters. Accordingly, Shoaib and himself went to the spot on his motorbike. Lathif and Mubarak were waiting there. When he informed Lathif that he is interested in purchasing the mobile phone, Lathif took him on his motorbike near Mangala Kalyana Mantapa, Koramangala. As P.W.5 did not find any one there, when he questioned Lathif, he informed him that he has brought him to the said place on a false pretext in order to separate him from Shoaib. Few minutes later, one Wasim and Mansoor came to that place. Lathif took his phone and key of the bike. However, handed over the phone back to him. When he tried to contact Shoaib on phone, he did not answer and therefore, he suspected something. Again they went back to Adugodi Bus Stop, but Lathif escaped from there. At about 10.30 p.m., Shoaib's father informed about the incident. 12. P.W.6 is the Police Constable, who apprehended accused No.4-Afroz Pasha on 03.02.2005. P.W.7 is the Head Constable, who has apprehended accused No.1-Asgar on 01.02.2005 and accused No.3-Mubarak on 10.03.2005. 13. P.W.8 is the doctor at Accura Specialty Hospital, Bengaluru. He examined the injured Shoaib [P.W.2] and issued wound certificate as per Ex.P5. 14. P.W.9 is the ASI., who has received the oral complaint of P.W.2 and reduced it into writing as per Ex.P2. 15. P.W.10 is the Investigating Officer, who has laid the charge-sheet. 16. According to the prosecution, Juvenile in conflict with law namely Lathif was a friend of PW-2-Shoaib/first informant. 14. P.W.9 is the ASI., who has received the oral complaint of P.W.2 and reduced it into writing as per Ex.P2. 15. P.W.10 is the Investigating Officer, who has laid the charge-sheet. 16. According to the prosecution, Juvenile in conflict with law namely Lathif was a friend of PW-2-Shoaib/first informant. In the month of January 2005, he had asked PW-2 to lend his mobile phone. However, PW-2 had refused to give the mobile phone to him. Hence, the said accused had developed ill-will against PW-2. In this background, he conspired with other accused namely A1, A3 and A4 to eliminate P.W.2, near bus stop situated at Adugudi Police Quarters. Thereafter, accused No.2 secured PW-2 by telling him that there is a mobile phone for sale. When PW-2 came to the said place along with PW-5-Monish, accused No.2 introduced them to accused No.3. Thereafter, accused No.2 took PW-5 from the said place. It is the further case of the prosecution that at the instigation of Lathif, accused Nos.1, 3 and 4 took PW-2 near water storage tank and accused Nos.3 and 4 assaulted him with hands and also held him and accused No.1 with the help of a razor caused cut injury to his neck with an intention to commit his murder. 17. Pw-9-Asi of Adugodi police station has deposed that on 31.01.2005 at about 11.30 p.m, injured-PW-2 came to the police station and gave an oral complaint which was reduced by him into writing. The same is marked as Ex.P2. Though PW-9 has not stated about sending the injured to the hospital, PW-2 has stated that police took him to Sanjay Gandhi Hospital for treatment. From there he was taken to Acura Hospital in Koramangala, wherein, he was treated and discharged. According to PW-8-Medical Officer, on 31.01.2005 at 11.30 p.m he examined PW-2, who was brought by police constable by name Krishna Murthy. He noticed 3 injuries and issued wound certificate as per Ex.P5. He has opined that the injuries could be caused if a sharp edge knife is used. He has stated that injury Nos.1 and 2 are grievous in nature. 18. In the wound certificate issued by PW-8 which is marked as Ex.P5, the history given is that the injured was assaulted by Lathif (Juvenile), Mubarak (A3), Afroz (A4) and others near Adugodi. However, it is relevant to see the wound certificate issued by General Hospital, Jayanagar, Bengaluru. He has stated that injury Nos.1 and 2 are grievous in nature. 18. In the wound certificate issued by PW-8 which is marked as Ex.P5, the history given is that the injured was assaulted by Lathif (Juvenile), Mubarak (A3), Afroz (A4) and others near Adugodi. However, it is relevant to see the wound certificate issued by General Hospital, Jayanagar, Bengaluru. Perusal of the same goes to show that the injured was seen by the doctor and examination was commenced from 10.20 p.m on 31.01.2005. It is mentioned that the injured suffered a deep incised wound in front of neck 6 cms. horizontally situated muscles have been torn and bleeding. The injured was referred to major institute. The history mentioned was that the injured was assaulted by some unknown persons at 9.20 p.m by means of razor. The said wound certificate was marked in evidence in S.C. No.723/2006. 19. The incident has taken place on 31.01.2005 at about 9.30 p.m. The First Information Report came to be registered at about 11.30 p.m at Adugodi police station. The history furnished at the earliest point of time was that the injured was assaulted by some unknown persons by means of razor. However, in the FIR names of 3 accused persons are mentioned. In Ex.P7, the names of 3 persons are mentioned. However, the said wound certificate was issued by P.W.8 after PW-2 took treatment at General Hospital, Jayanagar, from where Ex.P6 marked in S.C. No.723/2006 was issued. The perusal of FIR go to show that though the case was registered at 11.30 p.m on 31.01.2005, FIR was transmitted to the jurisdictional Magistrate at about 3.00 pm on 01.02.2005. 20. In the above background it is relevant to see the averments made in the complaint lodged by PW-2. It is stated in Ex.P2 that when his friend namely Lathif (juvenile) called him over his mobile phone and told him that there is a mobile phone for sale and asked him to come near Adugodi Police quarters, P.W.2 went to the said place along with P.W.5- Monish. There Lathif introduced him to accused No.3. Thereafter, he went away along with PW-5. At about 9.30 p.m two more persons came there and picked up quarrel with him. When Accused No.3 made some sign, one of the accused slapped him. There Lathif introduced him to accused No.3. Thereafter, he went away along with PW-5. At about 9.30 p.m two more persons came there and picked up quarrel with him. When Accused No.3 made some sign, one of the accused slapped him. Thereafter accused Nos.3 and 4 held him tightly and accused No.1 caused injuries to his neck with razor and attempted to commit his murder. In the FIR., PW-2 has specifically stated that all the 3 accused ran away from the spot. Thereafter, he went to the police station. 21. In his evidence PW-2 has stated that accused No.3 and two others attacked him. Accused No.3 held his right shoulder and one Asgar (A1) who was holding a razor, caused cut injury. They snatched the mobile phone from his pocket and started to run away. He chased them. Two persons passing on the road caught hold of accused No.1 and took him to police station. 22. From the above evidence of PW-2 it is seen that there are material improvements in so far as apprehending accused No.1 by chasing him and taking him to the police station on the very same day. The same is not spoken by PW-9, the ASI of Adugodi Police Station. According to PW-10 Investigating Officer he took over the investigation on 01.02.2005 and on that day accused No.1 was arrested by him. After recording the voluntary statement, on 02.02.2005 he recovered the razor (MO-1) at his instance from the spot. In view of the same, it is difficult to believe that on the very same night on 31.01.2005, accused No.1 was caught hold by two persons passing on the road and they taking PW2 and Accused No.1 to the police station as deposed by PW2 in his evidence. The snatching of mobile phone from PW2 is also not stated in the complaint. No mobile phone has been seized from any of the accused. 23. The prosecution has projected PW4 as an eye witness to the incident. According to PW4, on 31.01.2005 at about 8.00 p.m., when he was along with his friend by name Xavier near Adugodi bus stop, he overheard four persons talking to themselves that they should eliminate one person. After half an hour, while they were proceeding towards the bus stand, they heard some screaming noise and then they saw three persons assaulting a boy. After half an hour, while they were proceeding towards the bus stand, they heard some screaming noise and then they saw three persons assaulting a boy. One of them was assaulting him with a razor. When they rushed to the spot, all the three ran away leaving the injured. Thereafter, they took the injured to the police station. P.W.4 has deposed that he does not know the name of the accused as well as the injured. He has not stated that accused No.1 was chased and apprehended on the very same night. All the accused are strangers to him. He has not stated that after the arrest of the accused, they were shown to him and that he identified him on their arrest. His evidence with regard to his friend Xavier and himself overhearing the accused talking about committing the offence is also very difficult to believe. The said Xavier has not been examined by the prosecution. Perusal of the evidence of PW10 go to show that the statement of PW4 was recorded after the arrest of accused No.1 and Lathif. 24. Pw5 is not an eye witness to the incident in question. According to him, there was a quarrel between PW2 and Lathif regarding a mobile phone. On 31.01.2005, when he along with PW2, Lathif called him on phone and asked him to meet him near Adugodi police quarters. Both of them went to the spot on a motor cycle where Lathif and Mubarak (A3) were waiting. He informed Lathif that he is interested in purchasing the mobile. Thereafter, he went along with Lathif. Therefore, PW5 was not present at the spot and he has not seen the attack on PW2 by other accused. 25. On a careful perusal of the entire evidence on record, it can be seen that the evidence of PW2 alone could be taken into consideration with regard to the actual incident in question. In the background of the material improvements made by him in his evidence and also the fact that there is delay in transmitting the FIR to the jurisdictional Magistrate and further that the history given at the earliest point of time was that the attack was by unknown persons, the evidence of PW2 has to be carefully scrutinized. 26. In the background of the material improvements made by him in his evidence and also the fact that there is delay in transmitting the FIR to the jurisdictional Magistrate and further that the history given at the earliest point of time was that the attack was by unknown persons, the evidence of PW2 has to be carefully scrutinized. 26. From the evidence of PW2, as well as from medical evidence, the prosecution has been able to show that PW2 sustained injuries which are grievous in nature. According to the prosecution, the said injuries are caused by accused No.1 namely Asgar by means of a razor. The appeal against him is dismissed as abated. According to the prosecution, accused Nos.3 and 4 have held PW2 tightly and facilitated accused No.1 to cause injury to PW2 and therefore they shared common intention along with Accused No.1 to commit the offence. However, having noticed the material improvements in the evidence of PW2 and the delay in transmitting the FIR to the jurisdictional Magistrate, the evidence of PW2 that accused No.3 shared common intention with accused No.1 and that he held his right shoulder while accused no.1 gave a blow on his neck with a razor, is not safe to believe. 27. The evidence on record is not sufficient to hold that the accused No.3 along with other accused conspired to do away with the life of PW2. The evidence of PW5 that he saw three persons attacking PW2 and that over heard them also cannot be accepted as his evidence is not corroborated by any other evidence. As noted, one Xavier who was along with PW2 has not been examined by the prosecution. Even according to the prosecution, the motive is attributed to the juvenile in conflict with law namely Lathif. He was produced before the Juvenile Justice Board. 28. In the above circumstances, the evidence of PW2 alone is not sufficient to hold that even accused No.3 also participated and that he held PW2 while accused No.1 was giving a blow with a razor. The prosecution has not established its case against accused No.3 beyond all reasonable doubt. Accused No.3 is entitled to benefit of doubt and accordingly, the following: ORDER Appeal filed by accused No.1 is abated. Appeal of accused No.3 is allowed. The prosecution has not established its case against accused No.3 beyond all reasonable doubt. Accused No.3 is entitled to benefit of doubt and accordingly, the following: ORDER Appeal filed by accused No.1 is abated. Appeal of accused No.3 is allowed. The Judgment and Order dated 25.06.2010/30.06.2010 passed in S.C. Nos.405/2006 and 723/2006 on the file of the Court of Addl. Sessions Judge and Presiding Officer, FTC-12, Bengaluru in so far as accused No.3 is set aside. Accused No.3 is acquitted of the charges leveled against him under Sections 120B and 307 read with Section 34 of IPC. Bail bond if any stands cancelled.