JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. In the present appeals filed under Section 374 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.”), the appellants have assailed the judgement and order dated 31.08.2019 passed by learned 2nd Additional Sessions Judge, Kheda at Nadiad in Sessions Case No.97 of 2017. 2. Learned 2nd Additional Sessions Judge, Kheda at Nadiad has convicted accused Nos.2, 3 and 4 for the offences punishable under Sections 302 and 114 of the Indian Penal Code, 1860 (IPC) and acquitted the accused No.1 from all the charges. FACTS: 3. After completion of the investigation, charge-sheet was submitted before the learned Judicial Magistrate, First Class, Kapadwanj but since the offence under Section 302 of the IPC is exclusively triable by the Sessions Court, the lower Court committed the case to the Sessions Court, Kheda at Nadiad under the provision of Section 209 of the Cr.P.C. The Court below framed the charges under Sections 302, 504, 506(2) and 114 of the IPC against the present appellants. To prove the guilt against the appellants, the prosecution examined in all 14 witnesses and 19 documentary evidence however, the Sessions Court convicted accused Nos.2, 3 and 4 and sentenced to suffer life imprisonment and fine of Rs.10,000/-and in default rigorous imprisonment for a period of six months. 4. It is the case of the prosecution and the first informant that on 16.07.2017, when he was at Mehsana at around 8 O’clock, he received a phone call of the deceased i.e. his father informing him that he was assaulted by the accused in view of quarrel, which had taken place with regard to the land dispute. The trial Court, after examining oral as well as documentary evidence, has convicted the aforesaid accused Nos.2, 3 and 4 for the offences, as mentioned hereinabove. SUBMISSIONS 5. Learned advocate Mr.Brahmbhatt appearing for the appellants has submitted that the present case is absolutely the case of no evidence and the trial Court has misdirected itself in convicting and sentencing the appellants for the serious offence of murder. SUBMISSIONS 5. Learned advocate Mr.Brahmbhatt appearing for the appellants has submitted that the present case is absolutely the case of no evidence and the trial Court has misdirected itself in convicting and sentencing the appellants for the serious offence of murder. While inviting attention of this Court to the deposition of the complainant at Exh.22, who is the son of the deceased, the learned advocate has submitted that he has not an eye witness and as per the evidence of the said witness i.e. PW-1 in fact, the Investigating Officer was required to investigate with regard to the call received by him from his father however, no call details are produced and hence, his version of narrating the incident as per his complaint, cannot be believed. He has further submitted that the case of the prosecution rests on the evidence of PW-2, who is examined below Exh.24 and he is treated as an eye witness to the incident. He has submitted that PW-2 as well as the first informant are the interested witnesses. It is submitted that the version of the first informant as well as the depositions of the eye-witnesses cannot be believed since they are arraigned as an accused in Criminal Case No.335 of 2018, which is registered by the accused and the same is pending at Taluka Court, Kapadvanj. He has further submitted that close reading of the evidence at Exh.24 of PW-2 reveals that in fact, though he is closely related to the deceased, he did not try to intervene when he was being assaulted by the accused. It is also submitted that PW-2 did not even call the ambulance by dialing 108 and he was also not aware that who called the ambulance. Thus, it is submitted that the evidence of eye witness (PW-2) is required to be discarded. 6. While referring to the statement recorded under Section 313 of the Cr.P.C., he has submitted that in fact, the accused specifically have explained that in fact, due to the registration of the F.I.R. being No.17 of 2019 under Sections 326, 324, 504, 506(2) and 114 of the IPC and due to pendency of the criminal case in the Court of learned Chief Judicial Magistrate being Criminal Case No.335 of 2018, the accused are falsely implicated in the offence. He has further submitted that in fact, as per the case of the prosecution, the incident had occurred on 16.07.2017 and he was taken to the hospital and he was treated by (PW-3) Dr.Vipul J.Patel. While referring to the evidence, he has submitted that after the deceased was treated on 16.07.2017, he again visited the hospital on 17.07.2017 at 12 O'clock and he was referred to further treatment to the Civil Hospital. He has also referred to the certificate issued by PW-3 and the history recorded by him. It is submitted that the Injury Certificate at Exh.26 does not reveal any names of the accused and it only refers to the physical assault by 4-5 people with the wooden sticks. It is also submitted that the deceased passed away on 18.07.2017 as per the postmortem report, Exh.29 however, no dying declaration has been recorded or any statement has been given by the deceased naming the present accused. He has further submitted that after the deceased was taken to the Civil Hospital, Ahmedabad, surgery was accordingly performed on him however, the doctor, who had performed the surgery, is not examined and no investigation is done by the Investigating Officer collecting the medical papers of the surgery, which was undertaken on the deceased and hence, it is submitted that in all probabilities, the deceased could have succumbed to the faulty surgery. Thus, it is submitted that the case of the prosecution, which is premised on the sole testimony of the eye witness (PW-2), is required to be discarded as, he is an interested witness, who had all the reasons to implicate the appellants in false case. In support of his submissions, he has placed reliance on the decisions of the Apex Court in the cases of Indrajeet Singh Vs. State (NCT of Delhi), AIR 2020 S.C. 4894 and Jagdish Vs. State of Haryana, (2019) 7 S.C.C. 711 . Thus, he has submitted that the impugned order may be set aside. 7. In response to the aforesaid submissions, learned APP Mr.Antani has urged that this Court, while exercising its power under the provisions of Section 374 of the Cr.P.C., may not interfere with the findings of the trial Court as the same are premised on the appropriate appreciation of evidence. 7. In response to the aforesaid submissions, learned APP Mr.Antani has urged that this Court, while exercising its power under the provisions of Section 374 of the Cr.P.C., may not interfere with the findings of the trial Court as the same are premised on the appropriate appreciation of evidence. He has submitted that the presence of the accused at the scene of offence is established by the deposition of the complainant as well as PW-2. He has submitted that all the accused in fact, have assaulted the deceased in view of some enmity with regard to the land dispute on 16.07.2017. While referring to the postmortem report, he has submitted that the manner and method in which the assault is described by PW-2 gets corroborated with the injuries, which are found on the body of the deceased. He has further submitted that in fact, the trial Court has appropriately appreciated that the deceased was assaulted in such a manner that he was ultimately referred to the Civil Hospital, Ahmedabad and he succumbed to the injuries, which were inflicted on him. He has also referred to the deposition of (PW-4), Dr.Bhavin Shyamlal Shah, who has carried on postmortem of the deceased, in support of his submission. He has submitted that due to the serious injuries inflicted on the abdomen of the deceased, he had succumbed on 18.07.2017, after necessary efforts were made by operating him. Thus, it is submitted that the present appeal may not be entertained. ANALYSIS OF THE ORAL AND DOCUMENTARY EVIDENCE: 8. Heard the learned advocates for the respective parties and also scaled the evidences, which have been established on record. 9. The case of the prosecution as per the Charge, Exh.17 is that on 16.07.2017, four accused, assaulted the deceased at 18:00 hours because of some land dispute between them by severely beating him by sticks and during his treatment at the Civil Hospital, Ahmedabad, he passed away. The accused No.1 – Jashavantsinh Laxmansinh Zala has been acquitted by the trial Court, whereas the accused Nos.2, 3 and 4, who are the appellants, have been convicted for the charge under Section 302 and 114 of the IPC. The accused No.1 – Jashavantsinh Laxmansinh Zala has been acquitted by the trial Court, whereas the accused Nos.2, 3 and 4, who are the appellants, have been convicted for the charge under Section 302 and 114 of the IPC. The first informant, who is the son of the deceased (PW-1), in his evidence below Exh.22 has deposed that on 16.07.2017, while he was at Mehsana, he received a phone call from his father at around 7 to 8 in the evening that all the accused as named in the charge have assaulted him by inflicting stick blows and accordingly he rushed from Mehsana to Ahmedabad. It is further deposed by him that he received a phone call from his brother-in-law - Dalpatsinh Gulabsinh Solanki that the deceased is taken to Maruti Orthopedic Hospital for treatment and accordingly, he rushed to the said hospital and he saw that bandages were applied to his father. Accordingly from inquiring his father, he narrated the incident. It is further deposed that doctor informed his father to go to the Civil Hospital, Ahmedabad and except that, his father did not say anything and he had taken his father to Ahmedabad and during his treatment in the hospital, his father passed away. In his cross-examination, it is elicited that all the accused are his relatives and the accused Nos.1 and 2 are his uncle and aunt, whereas the accused Nos.3 and 4 are his cousins. It is further elicited in the cross-examination that in the Court of Kapadvanj, criminal case is pending for the prosecution under Section 326 of the Cr.P.C. registered by Bhupat @ Rajesh as well as Lalit @ Kalu for allegedly beating him. From his deposition, it is revealed that the first informant, who is a son of deceased has received a phone call from him alleging that four accused had beaten him with sticks with regard to the land dispute. The investigation does not reveal that any efforts were made for analyzing the call records and asserting the fact that the deceased had called his son i.e. PW-1 on 16.07.2017 at around 7-8 pm. 10. The prosecution has very heavily placed reliance on the eye-witness (PW-2), Manojsinh Dolatsinh Zala, in order to bring home the charge against the accused-appellants. The investigation does not reveal that any efforts were made for analyzing the call records and asserting the fact that the deceased had called his son i.e. PW-1 on 16.07.2017 at around 7-8 pm. 10. The prosecution has very heavily placed reliance on the eye-witness (PW-2), Manojsinh Dolatsinh Zala, in order to bring home the charge against the accused-appellants. In his evidence at below Exh.24, he has deposed that on 16.07.2017, he heard clamor, when he was at his home at 6 O’clock. He has witnessed that his uncle Jagatsinh - deceased was being assaulted by the sons of Jashwantsinh namely, Kishansing and Bhupatsinh and his wife Diluben in relation to some land dispute. It is further deposed that after he was assaulted by sticks by the accused, the deceased ran away and went to Amba Mata temple and after he returned to his home, after some time, he was feeling pain in his stomach and he was raising hues and cries, and some one called 108 and accordingly, he was taken to the hospital. In his examination-in-chief, he has further deposed that since he was having personal enmity with his neighbour and they were very angry, he did not make any efforts to rescue the deceased and he did not take him to the hospital. It is clarified by him that since he would be again roped in fight or quarrel, he did not go. Further, it is deposed by him that he saw the deceased at the Emergency Center at the Civil Hospital and accordingly, the doctor informed him to undertake necessary operation/surgery and after the necessary surgery was undertaken, at around 1 O'clock in the night, the deceased passed away. In his cross-examination, he has also referred to Criminal Case No.335 of 2018, which has been registered by the accused against him and is pending at the Kapadvanj Court. From the deposition of PW-2, it is apparent that he had seen the accused inflicting blows of sticks on the deceased and after such blows were inflicted, the deceased, after some time, returned to his home. He has further admitted enmity between him and his neighbour i.e. accused, he did not make any efforts to save his uncle i.e. the deceased and also to take him to the hospital. He has further admitted enmity between him and his neighbour i.e. accused, he did not make any efforts to save his uncle i.e. the deceased and also to take him to the hospital. His evidence also reveals that after the deceased was treated at one dispensary, he was referred to Ahmedabad Civil Hospital and after the necessary surgery was undertaken, he passed away at 1 O'clock in the night. It is also established that he is facing criminal trial in view of the complaint registered against him by the appellants. 11. The Doctor, PW-3, who initially has treated the deceased, in his evidence at Exh.25 has stated that on 16.07.2017, he treated the deceased and after examining him he found fracture on right hand and since the deceased was complaining about pain in his stomach, he referred him to the Civil Hospital. It is further deposed by him that on the next day i.e. on 17.07.2017 at 12 O'clock, the deceased again came to the dispensary and after necessary sonography test was done, he noticed some blood in his stomach and hence, he was referred for further treatment to the Civil Hospital, Ahmedabad. He has deposed that the injuries, which were noticed by him were serious and were inflicted by some blunt object. It is further opined by him that some injuries can be inflicted by sticks. The doctor accordingly, issued the injury certificate below Exh.26. 12. A perusal of the injury certificate reveals history recorded by him, which refers to “physical assault by 4-5 people with wooden sticks.” Thus, before the doctor, the deceased has not named the present accused and has referred to 4-5 persons, who have assaulted him with the wooden sticks. The evidence also reveals that after the deceased was treated by him on 16.07.2017, he again came on the next day i.e. on 17.07.2017 and thereafter, he was referred to the Ahmedabad Civil Hospital. 13. PW-4, Dr.Bhavin Shah, who has undertaken the postmortem of the deceased has narrated the injuries as per his postmortem report. In his deposition, he has submitted that he has found different injuries on the body of the deceased. The postmortem report below Exh.29 refers to total 9 injuries. The same are as under: “(1) Transverse diffused contusion 15*6cm size on anterolateral of right upper abdomen, 16cm below right nipple & 11cm lateral to umbilicus. In his deposition, he has submitted that he has found different injuries on the body of the deceased. The postmortem report below Exh.29 refers to total 9 injuries. The same are as under: “(1) Transverse diffused contusion 15*6cm size on anterolateral of right upper abdomen, 16cm below right nipple & 11cm lateral to umbilicus. (2) Diffussed contusion oblique 13*3cm size on back of right lower chest, 6cm lateral to midline & 11cm below inferior angle of right scapula directed upwards, medially obliquely. (3) Reddish brown scab 1*1 cm on left upper scapular area, 9cm lateral to midline. (4) Diffused contusion 12*3cm on back of left lower chest, 7cm lateral to midline & 8cm below inferior angle of left scapula, directed oblique upwards, medially (5) Vertical 1cm stich wound (Two intermittent black stiches) on back of left lower arm, 6cm above decrenon process with surrounding diffused blue contusion of transversely size 9*7cm on left lower arm back area on opening stich wond, margings early getsseparated, irregular contused lacerated. (6) Linear scab transverse 3mm size on anteromedial of left forearm 4cm above left wrist. (7) Linear scab 3cm vertical on right iliac fossa, 5cm above right mid inguinal point. (8) Vertical 17cm surgical stich wound on front of abdomen at midline extend from mid epogestrium to lower abdomen area, 14cm above pubic symphysis. (9) Surgical punctured wound 0.5*.05cm abdomen cavity deep on left lumbar area. 13Cm lateral to umbilical lever, 21cm below left nipple, One skin stich just medial to it for surgical fixation of drainage tube as part of treatment seen Above all contusions are blue in colour & scabs are reddish brown in colour.” 14. In his cross-examination, it is specifically deposed by him that “As per Column No.17 of PM note, injuries No.1 to 7, if are present and there are no other related injuries present then the death cannot occur.” He has further deposed that injuries No.8 and 9 were surgical and it is further denied by him that such surgical injuries can result into death (doctor’s negligence). From the injuries, as referred hereinabove in column No.17, injury No.5 is a stitch wound. Injury No.8 is also surgical stitch wound and injury No.9 is also a surgical puncture wound. From the injuries, as referred hereinabove in column No.17, injury No.5 is a stitch wound. Injury No.8 is also surgical stitch wound and injury No.9 is also a surgical puncture wound. From the deposition of the Doctor, it is manifest that the injuries, which are mentioned in the column Nos.1 to 7, will not result into death, if other collateral injuries are not present. 15. The trial Court, after examination of the aforesaid evidence, has acquitted the accused No.1, who was specifically named by the complainant in his complaint, whereas the trial Court has convicted the present appellants. 16. The overall evidence which is established on record would reveal the below facts: (a) It is the case of the prosecution that the deceased was assaulted on 16.07.2017 by four accused. He was treated on 16.07.2017 by PW-3. The deceased again returned on the next day, i.e. on 17.07.2017 for further treatment in afternoon around at 12 O'clock and after sonography was done by PW-3, he was referred to the Civil Hospital, Ahmedabad. The deceased was treated at the Civil Hospital, Ahmedabad and major surgery was undertaken and after such surgery, he passed away in the night of 18.07.2017. It is however, surprising and shocking to note that the Investigating Officer has not made any efforts for collecting the medical papers from the Civil Hospital, Ahmedabad. (b) The Doctor, who has undertaken necessary surgery of the deceased at Ahemdabad Hospital, is not made a witness and no statement is recorded by the Investigating Officer. 17. In the facts and circumstance of the case and looking to the serious allegations and the offence of murder, the prosecution was required to produce the relevant medical papers of the Civil Hospital, Ahmedabad. The trial Court as well as State were expected to undertake fair and necessary trial Court proceedings by examining the Doctor, who has performed his major surgery on the deceased in order to establish that the deceased did not succumb to the surgery, which was undertaken at the Civil Hospital, Ahmedabad and in fact, he died due to the injuries caused by assault. This evidence was necessary since PW-4 has deposed that the injuries would not be sufficient to cause death. 18. This evidence was necessary since PW-4 has deposed that the injuries would not be sufficient to cause death. 18. It is also not in dispute and established from the evidence that the deceased from 16.07.2017 till he was admitted at the Civil Hospital, Ahmedabad and had undergone surgery did not reveal the names of the present accused however, neither the Investigating Officer has recorded his statement nor any statement is found on record, which could have been treated as dying declaration naming the accused as assaulters. The medical history also does not reveal names of the accused. The version of PW-2, who is an eye-witness is an interested witness and he has been arraigned as an accused in the complaint filed by the accused under the provisions of Section 326 of the Cr.P.C. and they are facing trial being Criminal Case No.335 of 2018. All the accused i.e. the present appellants in the statement recorded under Section 313 of the Cr.P.C. have categorically stated that they are arraigned as accused in false case in view of the complaint filed by them against the complainant as well as PW-2 on 05.07.2017 being F.I.R. No.17 of 2017 under the provisions of Sections 326, 324, 504, 506(2) and 114 of the IPC and Criminal Case No.335 of 2018 is pending. Even if the version of PW-2 is believed, the same does not in any manner indicate that the deceased has succumbed to the injuries caused due to physical assault, since he has stated that the deceased died immediately after the major surgery was performed on the deceased at Civil Hospital. 19. Thus, over all appreciation of the evidence will establish that the prosecution has failed in establishing the guilt of the accused beyond reasonable doubt for serious offences, which invite serious sentence of life imprisonment. The prosecution was required to establish the guilt of the accused by adducing evidence of a sterling quality however, the present case is creating doubt and the same in no manner establishes the complicity of the accused in the offence hence, the trial Court has misdirected itself in appreciating such evidence by recording conviction and sentence to the appellants. 20. In view of the above, the present appeal succeeds. The impugned judgement and order dated 31.08.2019 passed in Sessions Case No.97 of 2017 by learned 2nd Additional Sessions Judge, Kheda at Nadiad is hereby quashed and set aside. 20. In view of the above, the present appeal succeeds. The impugned judgement and order dated 31.08.2019 passed in Sessions Case No.97 of 2017 by learned 2nd Additional Sessions Judge, Kheda at Nadiad is hereby quashed and set aside. The accused-appellants shall be released forthwith unless they are not required in another offence. Registry to place a copy of this order in the connected matter.