Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 204 (GUJ)

State of Gujarat v. Koli Kana Rashi

2020-01-31

A.C.RAO, BELA M.TRIVEDI

body2020
JUDGMENT : BELA M. TRIVEDI, J. 1. The present appeal was filed by the appellant-State under Section 378 of Cr.P.C against 15 respondents (original accused) challenging the judgment and order dated 14.07.1993 passed by the Additional Sessions Judge, Palanpur (hereinafter referred to as “the Sessions Court”) in Sessions Case No. 148 of 1990, whereby the Sessions Court had acquitted all the respondents-accused from the charges levelled against them under Section 147, 148, 149, 302, 324 of IPC and Section 135 of the Bombay Police Act. Pending the Appeal, as per the information received by the learned Advocate Mr. Barot, the respondent No. 1 Koli Kana Rashi, the respondent No. 2 Koli Babu Kana, Respondent No.8 Koli Dhana Bhaju, Respondent No.10 Koli Sadha Vibha, Respondent No.11 Koli Aju Vibha, Respondent No.13 Koli Masung Padkhan and Respondent No.14 Koli Mafa Masung have already expired. He has placed on record the death certificates of respondent Nos.1,2, 13 and 14, however the death certificates of other respondents being not available with him, the Court had recorded the said submission of Mr. Barot in order dated 18.12.2019. Though the Court had directed the learned APP to verify the position, the learned APP has not placed anything on record disputing the said position, and therefore the appeal would stand dismissed as abated qua respondent Nos. 1,2,8,10,11,13 and 14 on their death accordingly. 2. The case as unfolded by the prosecution before the Sessions Court was that on 07.06.1990 at about 9:00 p.m., the respondents-accused had formed an unlawful assembly and in furtherance of their common object they assaulted Pratap Arjan, brother of the complainant Pathu Arjan, and his cousin Karamsi Surta, when they were passing through the road near the house of Koli Kana Rashi. As per the further case of the prosecution, the respondents-accused armed with the weapons like sticks, dhariyas and scissors had assaulted the said Pratap Arjan and Karamshi with the said weapons, by picking up the quarrel that why they were passing through the said road. The complainant Pathu Arjan, and his brother Pratap Arjan and Karamsi Surta therefore had started running towards the field of Patel Deva Sava, however the accused also ran after them and caused injuries to the said Pratap Arjan and Karamshi Surta with Dhariyas, sticks, swords and scissors, etc. The complainant Pathu Arjan, and his brother Pratap Arjan and Karamsi Surta therefore had started running towards the field of Patel Deva Sava, however the accused also ran after them and caused injuries to the said Pratap Arjan and Karamshi Surta with Dhariyas, sticks, swords and scissors, etc. When the complainant Pathu tried to intervene, he was also given a blow with a sword by the accused No. 1 Koli Kana Rashi on his right hand. The another brother of the complainant i.e. Vaso had also arrived there hearing the shouts, however thereafter the complainant and his brother Vaso had run away towards the field to save their lives. The said Pratap and Karamsi Surta thereafter succumbed to the injuries received by them. According to the case of the prosecution, the accused No. 1 Koli Kana Rashi had a sword, the accused No. 2 Babu Kana had Dhariya, the accused Nos. 4 and 9 Bhamara Kana and Balvant Bhaju were armed with scissors. The complainant Pathu Arjan lodged the complaint in respect of the incident in question on the next day at Dhanera Police Station which was registered as I CR. No. 63 of 1990 against all the accused. The Investigating Officer after carrying out the investigation had submitted the chargesheet against all the accused in the Court of the Judicial Magistrate First Class, Dhanera where it was registered as Criminal Case No. 787 of 1990. The case being triable by the Court of Sessions, the said Court had committed the case to the Sessions Court under Section 209 of the Cr.P.C., which was registered as the Sessions Case No. 148 of 1990 before the Sessions Court. 3. The respondent-accused had also lodged a complaint in respect of the same incident, which was also committed by the Court of Judicial Magistrate First Class along with the Criminal Case No. 787 of 1990 to the Court of Sessions, and the same was registered as Sessions Case No. 180 of 1990 before the Sessions Court. However it appears that both the sessions cases were tried separately. 4. So far as the Sessions Case No. 148 of 1990 was concerned, the Sessions Court had framed the charge against the respondents accused at Exh. 6 for the offences punishable under Section 147, 148, 302 read with Section 149 of the IPC and Section 135 of the Bombay Police Act. 4. So far as the Sessions Case No. 148 of 1990 was concerned, the Sessions Court had framed the charge against the respondents accused at Exh. 6 for the offences punishable under Section 147, 148, 302 read with Section 149 of the IPC and Section 135 of the Bombay Police Act. The said charge having been denied by the accused, the trial was conducted against them. The prosecution in order to prove the charges levelled against the accused, had examined 19 witnesses and had also led documentary evidences. The Sessions Court after completion of the evidence by the prosecution had recorded the further statements of the respondents accused under Section 313 of the Cr.P.C. wherein they had denied the allegations levelled against them. The accused had examined the witness Chandu Sonar at Exh. 87 in support of their defence. The Sessions Court after appreciating the evidence on record had acquitted all the respondents-accused from the charges levelled against them vide the impugned judgment and order dated 14.07.1993 against which the present appeal was filed by the appellant-State however as stated herein above, some of the respondent i.e. respondent Nos. 1,2,8,10,11,13 and 14 have expired pending the appeal and therefore the Appeal has stood abated qua the said respondents-accused. 5. The learned APP Mr. H K Patel taking the Court to the evidence adduced before the Sessions Court and the findings recorded by the Sessions Court in the impugned judgment and order, vehemently submitted that the Sessions Court had committed grave error in not appreciating the evidence in the right perspective, more particularly the evidence of the complainant Pathubhai Arjanbhai at Exh. 40 who was the eyewitness, as also the evidence of Vasabhai Arjanbhai at Exh. 45 and of Panchabhai Laxmanbhai Suthar at Exh. 43. According to him, the evidence of eye witness Pathubhai was not only corroborated by the contents of his complaint but also was corroborated by the evidence of the independent witness Panchabhai Laxmanbhai. The witness Amarben Arjanbhai and Kalaben Jaksibhai had also seen the accused with the weapons, however the said evidence have also been not relied upon by the Sessions Court. The witness Amarben Arjanbhai and Kalaben Jaksibhai had also seen the accused with the weapons, however the said evidence have also been not relied upon by the Sessions Court. He further submitted that on the date of the incident i.e. 07.06.1990 at about 9:00 p.m. all the accused had assembled with deadly weapons at the house of the accused No. 1 Koli Kana Rashi and had picked up a quarrel with the deceased Pratapsinh and Karamsi when they were passing through the road near the house of Kana Rana, and thereafter they chased the said Pratapsinh and Karamsi, and when they reached near the field of Pathuji Laxmanji all the accused assaulted both of them with deadly weapons and injured them severely. He further submitted that the complainant when tried to intervene was also injured by the accused No. 1 Koli Kana. Since the complainant and the accused were the relatives, there was no question of identification of any of the accused. According to Mr. Patel, the Sessions Court had given unnecessary weightage to the minor discrepancies appearing in the evidence of the witnesses of the prosecution for acquitting the respondents-accused, otherwise the prosecution had proved all the charges levelled against the accused beyond reasonable doubt. 6. However the learned Advocate Mr. Tejas Barot appearing for the respondents also taking the Court to the evidence led by the prosecution pointed out the contradictions appearing in the evidence of the complainant Pathubhai Arjanbhai Exh. 40 and the evidence of PW. 6 Vasabhai Exh. 45 as also in the evidence of PW. 8 Arjanbhai Parkhanbhai to submit that the contradictions being material contradictions, the story as canvassed by the prosecution was improbable. According to him, the injuries allegedly caused by the accused Kana Rashi on the complainant was not possible with sword as per the evidence of PW. No. 1 Dr. Dalsukhbhai Nathabhai Parmar, as alleged by the complainant Pathubhai. Mr. Barot further submitted that the alleged incident having taken place at the night hours and there being no sufficient light at the alleged scene of offence, the very identity of the accused at the instance of the complainant was doubtful. Relying upon the evidence of D.W.No. 1 Chandubhai Sonarbhai Exh. Dalsukhbhai Nathabhai Parmar, as alleged by the complainant Pathubhai. Mr. Barot further submitted that the alleged incident having taken place at the night hours and there being no sufficient light at the alleged scene of offence, the very identity of the accused at the instance of the complainant was doubtful. Relying upon the evidence of D.W.No. 1 Chandubhai Sonarbhai Exh. 87, he submitted that the said Chandubhai had tried to intervene and had received injury when he tried to save Bhamara Kana who was being injured by the complainant Pathu Arjan armed with axe. Reliance was also placed on the cross-complaint filed by the accused, to submit that the prosecution had suppressed the very genesis of the alleged incident, and the complainant lodged the complaint on the next day of the alleged incident, after due deliberation and consultation, was rightly not believed by the Sessions court. Relying upon the decision of the Supreme Court in Dani Singh and others versus State of Bihar reported in (2004) 13 Supreme Court 203, he submitted that the prosecution having failed to prove the common object of unlawful assembly, the respondent accused could not have been convicted with the help of Section 149 of IPC. He also relied upon the decision of the Supreme Court in case of Kuldip Yadav versus State of Bihar reported in (2011) 5 Supreme Court 324 to submit that in order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly and that it must be within the knowledge of other members of the assembly that the members of the assembly were likely to commit the offence in furtherance of their common object. He also submitted that the appellate court should not reverse the judgment of acquittal unless the judgment of the trial court was found to be perverse. In this regard, he has relied upon the decision of the Supreme Court in case of Arulvelu and another versus the State reported in (2009) 10 Supreme Court Cases 206. 7. He also submitted that the appellate court should not reverse the judgment of acquittal unless the judgment of the trial court was found to be perverse. In this regard, he has relied upon the decision of the Supreme Court in case of Arulvelu and another versus the State reported in (2009) 10 Supreme Court Cases 206. 7. Before appreciating the rival contentions raised by the learned Advocates appearing for the parties, let us regurgitate the legal position as regards the powers of the Appellate Court while deciding the appeal the Supreme Court in case of State of Rajasthan versus Ram Nivas reported in (2010) 15 SCC 463 has made very apt observations in this regard which may be reproduced as under: “6. This Court has held in Kalyan v. State of U.P. reported in (2001) 9 SCC 632 : “8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the Criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial Court is supposed to have watch the demeanor and conduct of the witnesses and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram. v. state of H.P., this Court observed that the golden thread which runs through the web of administration of justice in a 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.”” 8. In Arulvelu and another versus State (supra) the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under: “36. In Arulvelu and another versus State (supra) the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under: “36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” 9. In light of the aforestated observations, let us broadly deal with the evidence led by the parties before the Sessions Court. 10. The P.W. 1 Dr. Dalsukhbhai Parmar examined at Exh. 26 had carried out the postmortem of the deceased Pratap Arjan Koli and the deceased Karamsi Surta, as also had treated the complainant Pathubhai Arjanbhai Koli for his injuries. The said medical officer had narrated the internal and external injuries found on the dead bodies of both the deceased and further stated that the cause of death of the deceased Pratap Arjan was shock-bloodloss and that the external injury Nos. 1 and 2 were possible with sharp edged weapons whereas injury Nos. 3 to 5 and 6 were possible with hard and blunt substances. On showing the muddamal axe and dhariya he had stated that the injury No. 2 was possible with such weapons. So far as deceased Karamsi Surta was concerned, after narrating the external and internal injuries he had stated that the cause of death was blood loss due to brain damage and that the injury Nos. 1 and 2 were possible with sharp edged weapons whereas injury Nos. 3 and 4 were possible with hard and blunt substances. On showing the muddamal Dhariya he had stated that injury Nos. 1 and 2 were possible with such weapon and injury nos. 3 and 4 were possible with muddamal sticks. The witness was examined at length as regards the injuries stated by him in the postmortem report in respect of both the deceased, however nothing material has come up from the cross-examination. 1 and 2 were possible with such weapon and injury nos. 3 and 4 were possible with muddamal sticks. The witness was examined at length as regards the injuries stated by him in the postmortem report in respect of both the deceased, however nothing material has come up from the cross-examination. From the injuries and the cause of death stated by him in the postmortem reports and in his substantive evidence before the Court, it was duly established that the injuries correlated with the cause of death and both the deceased Pratap and Karamsi had died a homicidal death. 11. The P.W. 1 had also examined injured Pathubhai Arjanbhai Koli, the complainant herein and he had produced the injury certificate, from which it transpires that the said Pathubhai had abrasions on the right hand and tenderness on the back. He had stated that the said patient had not stated about the history as to how the said injuries were caused. On showing the muddamal sword, he had stated that the injuries found on the body of the said Pathubhai were not possible with such sword. 12. At this juncture, it would be also relevant to mention that the prosecution had examined P.W. 2 the medical officer Shyamaldas Mohanlal Advan who was on duty at CHC Dhanera on 08.06.1990. He had stated that on the said day at about 8:40 p.m., he had examined Bhamaraji Kanaji (accused No. 4), Ramaji Kanaji (accused No. 6) and Chanduji Chenaji (D.W. No. 1) who were brought to him with the Yaadi of Dhanera Police Station. He had also narrated the injuries found on the person of the said three persons and produced the certificates given by him at Exh. Nos. 34 to 36 respectively. He had stated that Bhamaraji Kanaji and Ramaji Kanaji had told him that they had suffered injuries on the previous night with stick blows. He had further stated that the injuries found on the left palm of Chanduji Chenaji was possible with the muddamal axe, if he had tried to save some other person. 13. In the light of the aforestated medical evidence, let us examine the evidence of other witnesses more particularly of the complainant P.W.4 Pathubhai Arjanbhai. He had further stated that the injuries found on the left palm of Chanduji Chenaji was possible with the muddamal axe, if he had tried to save some other person. 13. In the light of the aforestated medical evidence, let us examine the evidence of other witnesses more particularly of the complainant P.W.4 Pathubhai Arjanbhai. The said P.W. 4 after narrating the relationship with the accused who happened to be his cousins and relatives, had also stated at length about the locations of their respective houses and fields at village Kuwarala. As regards the incident in question, he had stated that at about 9:00 pm on the date of the incident, his brother Pratapbhai had come to his home and asked him to come with him as Zebarben, the wife of Pratapbhai was sick, however he (Pathu) refused to accompany him as he wanted to go to the field for watering the crop. According to him, the said Pratapbhai therefore had called Karamsi who happened to be their cousin. Thereafter, both Pratap and Karamsi had left home to call their another cousin Vakta Kadu and he i.e. Pathu also left home along with them for going to his field. When all the three were passing through the lane near their house on the southern side, the accused Kana Rashi and other 15 persons were found sitting there armed with weapons and Kana Rashi asked them that why they were passing through the said road. Thereafter, all the 15 persons had chased them with weapons in their hands and therefore he started running towards his field and Pratap and Karamsi started running towards the field of Ganesh Trikam. The said 15 people i.e. Babu Kana, Ajmal Kana, Bhamara Kana, Rama Kana, Soma Rashi, Sadha Vibha, Punama Vibha, Aju Vibha, Galbha Surta, Dhana Bhaju, Balvant Baju, Mafa Masung, Ghemara Sada and Kana Rashi ran after Pratap and Karamsi and therefore he also went towards them to save Pratap and Karamsi. According to him, his brother Vaso Arjan was also following him. According to him, his brother Vaso Arjan was also following him. Thereafter, he saw that Kana Rashi had given a blow with a sword on the head of Pratap and also given a blow with sword on the head of Karamsi, and Babu Rashi also inflicted injury on the jaw of Pratap with Dhariya, and therefore both of them had fallen down on the ground and other accused also started beating both of them with sticks and scissors. He therefore tried to intervene, however Kana Rashi also gave one blow with sword on the right palm, he therefore ran away from the place. When he was going back, he met Vaso to whom he said that Pratap and Karamsi have been killed and therefore let us go away. According to him, thereafter the accused had run away, and he saw that Pratap and Karamsi were lying dead in the pool of blood. By that time, the other lady members had also come there. According to him, on that day his father had gone to the village Changda and therefore his brother Vaso had gone to village Changda to call his father who had come at about 10:00 p.m. He further stated that thereafter on the next day morning he and his father had gone to Dhanera Police Station at about 6:00 a.m. and lodged the complaint which was on record at Exh. 41. He had stated that in respect of the incident in question, the opposite side had also lodged a complaint against them. 14. In the cross-examination, the said Pathubhai had admitted that a quarrel had taken place three to four months back between his father Arjan and Masung with regard to the blowing of Dhol in respect of which a complaint was lodged and thereafter Karamsi had also lodged another complaint against some of the accused. As regards the incident in question, he had admitted that the fields of the accused were situated adjacent to his field and he, and that all the accused had worked in their respective fields for the whole day on the day of the incident. He also admitted that the accused were sitting near their houses which were about two feet away from the road (kacha road) from which they were passing. He had denied that he had spent the whole night near the dead bodies. He also admitted that the accused were sitting near their houses which were about two feet away from the road (kacha road) from which they were passing. He had denied that he had spent the whole night near the dead bodies. He had denied that his father and his brother Somo had met him on the next day morning at the bus stand of Dhanera village and thereafter they had gone to lodge a complaint. He had denied that one Chandu Sonar was also injured in the incident and that he himself had caused injury to Chandu Sonar with an axe. He was confronted with his statement in the complaint and he had admitted that he had not stated in the complaint that Kana Rashi had given a blow with sword on the head of Pratap and also on the head of Karamsi. He also admitted that he had not stated in the complaint that Babu had injured Pratap on his jaw. He had denied that he himself had an axe, and Pratap and Karamsi had sticks with them, and that they only had picked up the quarrel with the accused by saying that why they were not allowed to play dhol in Holi, and thereafter had got excited and started beating Bhamaraji. He had also denied that thereafter other persons had gathered there hearing the shouts. He also denied that in the fight, Karamsi had given stick blow on Rama and Bhamara and that when he (Pathu) was about to give a blow with axe on the head of Bhamaraji, Chandu Sonar had intervened and the said blow of axe had fallen on the hand of Chandu Sonar. He also denied that Rama and Bhamara on apprehending that they would be killed by him (Pathu), they were abruptly waving their sticks and scissors to save their lives, and at that time many people from the village had rushed to the place. He had denied that after consulting the advocate at night, he had given complaint on the next day morning at the Dhanera Police Station. 15. The prosecution had also examined PW. No. 6 Vasabhai Arjanbhai who happened to be the brother of Pathubhai. He had denied that after consulting the advocate at night, he had given complaint on the next day morning at the Dhanera Police Station. 15. The prosecution had also examined PW. No. 6 Vasabhai Arjanbhai who happened to be the brother of Pathubhai. Though he had stated inter alia that he had rushed to the place hearing the shouts, and though he had named the accused stating that he had seen them at the scene of offence along with the weapons like dhariyas, scissors, sticks, etc., he had admitted in his cross examination that he and Pathu had run away from the scene of offence towards one direction and the accused had run away towards the other direction. He had also stated that he had run away when the accused were beating Pratap and Karamsi. The said witness has not specifically stated as to how the incident had taken place. Similarly, the PW No. 7 Baluben-wife of deceased Karamsinh, PW No. 8 Arjanbhai Parkhanbhai-father of the deceased Pratap, PW No. 9 Amratben Arjanbhai-sister of the deceased Pratap, PW No. 10 Fulaben Jaksibhai-neighbour of the deceased and the accused and PW. 14Devabhai Savabhaia villager who knew the deceased and the accused, examined by the prosecution, had allegedly rushed to the scene of offence hearing the shouts and screams, however none of them had seen the actual occurrence of the incident in question. None of them therefore could be said to be the eyewitnesses to the incident in question. 16. In light of the aforestated evidence, if the evidence of DW. 1 Chandubhai Sonarbhai examined by the accused at Exh. 87 is appreciated, it is required to be noted that the said witness in his evidence had stated inter alia that Pathubhai, Pratapbhai and Karamsi happened to be his uncles and Bhamara Kana and Rama Kana happened to be his cousin brothers. As regards the incident in question, he had stated that he was going to his field at about 9:00 p.m. and on hearing the shouts he had gone towards the field of Sutra where he had seen 5 persons out of whom Pratap had a stick, Pathu had an axe, Karamsi also had stick, Bhamara had scissor and Rama had stick with them. When he was 5 to 6 steps away from them he had heard Karamsi, Pathu and Pratap abusing Rama and Bhamara, and thereafter he had seen that Karamsi had given a stick blow on Bhamara and therefore Bhamara and Rama had started running away from the place, and Karamsi and Pathu were chasing them. He had further stated that thereafter Rama had given a stick blow to Karamsi, and when Pathu was about to give a blow with axe on the head of Bhamara, he had intervened and therefore the said blow had fallen on his left hand. Thereafter, Rama and Bhamra had started shouting and waving their weapons in air. Thereafter, many people from the village had rushed to the site and he had gone away to his field. He thereafter was taken by the Police to the Dhanera Police Station and was sent to the hospital at 6:00 p.m. on the next day. In the cross examination, he had admitted that a crosscase was registered in respect of the incident in question and he was examined in the said case in the Court. He had also admitted the deposition given by him in the said case which was produced on record at Exh. 88. 17. From the aforestated evidence adduced by the prosecution as well as by the defence, it clearly transpires that in the alleged incident, the accused Bhamara Kana and Rama Kana as also the DW No. 1 Chandu Sonar had received injuries, and that they were treated by the PW. No. 2 Dr. Shyamaldas Advana for their injuries on the next day of the alleged incident. Their injury certificates are also on record at Exh. 34, 35 and 36 respectfully. However the said injuries inflicted on the person of the said accused and the DW No. 1 had remained to be explained at the instance of the prosecution. At the same time, from the evidence of DW No. 1 Chandubhai Sonarbhai at Exh. 87 and his deposition in the cross-case being Sessions Case No. 180 of 1990 produced at Exh. However the said injuries inflicted on the person of the said accused and the DW No. 1 had remained to be explained at the instance of the prosecution. At the same time, from the evidence of DW No. 1 Chandubhai Sonarbhai at Exh. 87 and his deposition in the cross-case being Sessions Case No. 180 of 1990 produced at Exh. 88 at the instance of the learned APP during the cross examination in the instant case i.e. Sessions case No. 148 of 1990, it has surfaced on record that the complainant Pathu in the instant case, was also allegedly armed with an axe, and the deceased Pratap and Karamsi were allegedly armed with sticks and that when the said Pathu was about to give a blow to Bhamara with his axe, the said Chandu had tried to intervene, and the said axe had fallen on the left hand of Chandu, which corroborated with the injury mentioned in the injury certificate at Exh. 36. The PW No. 2 Dr. Shyamaldas had also stated in his evidence that the injury mentioned in the injury certificate at Exh. 36 of Chandu Sonar was possible with the sharp edged weapons like an axe. He had also stated that the said Bhamaraji Kanaji and Ramaji Kanaji had told him that they were injured by the stick blows during the fight which had taken place on the previous night. Of course, they had not named any person who had given them stick blows, nonetheless from the evidence on record it was established that the said accused Bhamaraji, and Ramaji and the D.W. No. 1 Chanduji Sonar had received injuries in the fight which had taken place with the complainant Pathu and the deceased Pratap and Karamsi. Thus apart from the discrepancies and the contradictions appearing in the evidence of the complainant Pathu and in the evidence of PW No. 6 Vasa who had followed Pathu on hearing the shouts, and apart from the fact that the said Pathu had improvised his version stated in his complaint, by stating before the Court that Kana Rashi had given a blow with sword on the head of Pratap and thereafter had given a blow with sword on the head of Karamsi, and Babu had injured Pratap with Dhariya, which allegations were not specifically made in his complaint at Exh. 41, from the evidence of DW. 41, from the evidence of DW. No. 1, it has come on record that the said Pathu himself had an axe with him and Pratap and Karamsi had sticks with them and that Pathu had tried to give a blow on the head of Bhamara and at that time the said Chanduji had intervened and injured himself. From the said evidence, it appears that the prosecution had not come out with the correct facts before the Court and had also not tried to explain the injuries found on the person of the said accused Bhamara and Rama and on the person of the DW No. 1 Chandu Sonar. Under the circumstances, the very genesis of the incident in question as stated by the prosecution raises serious doubts. 18. It is axiomatic that the failure of the prosecution to offer any explanation regarding the injuries found on the accused would make the evidence related to the incident doubtful. Of course, where the evidence is very clear, cogent and creditworthy, and where the Court is able to distinguish truth from falsehood, the mere fact that the injuries on the accused were not explained by the prosecution would not by itself make the case of the prosecution vulnerable. In this regard a beneficial reference of the decision of the three Judges Bench of Supreme Court in case of Vijayee Singh versus State of U.P. reported in (1990) 3 SCC 190 be made in which the Supreme Court considering the earlier decisions in case of Mohar Rai versus State of Bihar reported in AIR (1968) Supreme Court 1281 and Lakshmi Singh versus State of Bihar reported in (1976) 4 SCC 394 observed in para. 10 as under: “10....In Mohar Rai's case it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. Likewise in Lakshmi Singh's case also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case.” 19. In the recent decision of the Supreme Court in case of Kumar versus State reported in AIR 2018 Supreme Court 2386 observations made in the case of Mohar Rai (supra) and in case of Lakshmi Singh (supra) are followed. 20. So far as facts of the present case are concerned, as discussed earlier the prosecution had failed to explain the injuries sustained by the accused and had also failed to prove the genesis of the occurrence of the incident in question by leading cogent and trustworthy evidence. The Court therefore is constrained to hold that the prosecution had failed to prove the charges levelled against the accused beyond reasonable doubt and the Sessions Court had rightly acquitted all the accused by giving them benefit of doubt. Even otherwise, as stated earlier, the appeal had already stood abated qua the main accused Koli Kana Rashi and Babu Kana Rashi who have expired pending the present appeal along with other five accused who have also expired during the pendency of the appeal. In absence of any cogent and reliable evidence adduced by the prosecution, it is difficult to hold the other respondents accused who are alive, guilty for the alleged offence. As observed earlier, an order of acquittal should not be lightly interfered with when the Court believes that two views are possible and when the prosecution had failed to prove the charges levelled against the accused beyond reasonable doubt. 21. In that view of the matter, the Court does not find any merit in the appeal. The judgment and order dated 14.07.1993 passed by the Additional Sessions Judge, Palanpur in Sessions Case No. 148 of 1990 is hereby confirmed. The Appeal stands dismissed.