JUDGMENT : CHEEKATI MANAVENDRANATH ROY, J. 1. Challenge in this appeal is to the judgment dated 29.06.2013 passed in Sessions Case No. 72 of 2012 on the file of the learned 7 th Additional Sessions Judge, Vadodara whereby, the respondent herein, who is the sole accused in the said case, was acquitted of the charges for the offences punishable under Sections 302 and 504 of the INDIAN PENAL CODE , 1860 (IPC). 2. Briefly stated, it is the case of the prosecution that the deceased by name Jagmalbhai Bariya (hereinafter referred to as, the deceased) is the father of the de facto complainant, who is examined as PW-9. It is stated that on 11.01.2012, PW-9, after having his dinner, went to the house of his relative to watch television (TV). After watching TV, when he was returning to his house, the accused, who is the nephew of the deceased, followed PW-9. When PW-9 reached his house, the deceased, who is his father, was sleeping on a cot in front of his house. At that time, the accused shouted against the deceased as to why he did not prepare food for his dinner and attacked him with an axe and caused injuries on his head and the left eye. When the deceased shouted after sustaining the said injuries, the neighbours and the relatives of the deceased, who are PW-11 to PW-13 and others reached the scene of offence. PW-11 snatched the axe from the hands of the accused and he preserved the same on the shelf in the house of the deceased. Thereafter, PW-9 and his relatives took the deceased, who was in unconscious state, to the hospital. PW-18 is the doctor, who initially treated him. He found three injuries on the body of the injured and Injury Certificate was issued to that effect by him. While the injured was being treated in the hospital, he succumbed to the said injuries on 20.01.2012. 3. On the report lodged by PW-9 on the date of incident i.e. on 11.01.2012, police initially registered a case for the offence punishable under Section 307 of the IPC. The accused was arrested during the course of investigation. After the injured died on 20.01.2012, on an intimation of his death, the police have altered the section of law to Section 302 of the IPC and under Section 504 of the IPC. The accused was arrested during the course of investigation. After the injured died on 20.01.2012, on an intimation of his death, the police have altered the section of law to Section 302 of the IPC and under Section 504 of the IPC. The inquest was held over the dead-body of the deceased. Thereafter, PW-17, who is the doctor, held autopsy over the dead- body of the deceased. In the Post Mortem (PM) examination, PW- 17 found nine injuries on the dead-body of the deceased. He opined that the deceased died due to the “cranio cerebral damage and its complications” on account of the injuries sustained by the deceased. Exh. 42, the PM Report and exh. 44, the Final Cause of Death Certificate mentioning the cause of death were issued to this effect by PW-17. 3.1 During the course of investigation, the Investigation Officer (IO) has seized the axe, said to have been used by the accused in the presence of the mediators from the house of the PW-9, who is the de facto complainant under the cover of a mediator report. Thereafter, it was sent for examination to the Forensic Science Laboratory (FSL) by the analyst. The analyst, who examined it, found blood on it and that, it is of ‘O’ group, which matched with the blood of the deceased. The IO also seized the shirt of the accused in the presence of the mediator under the cover of the mediator report. It was also sent for examination by the analyst to the FSL. The analyst found blood on the said shirt, which is of ‘O’ group, which matched with the blood of the deceased. 3.2 After completion of the investigation, the IO has laid the Charge-sheet against the accused for the offences punishable under Sections 302 and 504 of the IPC as the investigation revealed that the accused attacked the deceased with an axe and caused injuries to him on his head and eye which resulted into his death. 3.3 After the accused made his appearance in the trial Court, the trial Court framed charges for the offences punishable under Sections 302 and 504 of the IPC against the accused. The same were read over and explained to him. He denied the said charges and claimed to be tried. 3.3 After the accused made his appearance in the trial Court, the trial Court framed charges for the offences punishable under Sections 302 and 504 of the IPC against the accused. The same were read over and explained to him. He denied the said charges and claimed to be tried. 3.4 During the course of the trial, the prosecution got examined PW-1 to PW-22 witnesses and got marked 20 exhibits to prove its case against the accused. 3.5 After considering the said evidence on record and on appreciation of the same and on completion of the trial, the trial Court found the accused not guilty of any of the two charges levelled against him and thereby, acquitted him of the said charged by the impugned judgment. 3.6 Aggrieved thereby, the State has preferred the instant appeal assailing the legality and validity of the impugned judgment. 4. When the appeal came up for hearing before the Court, we have heard the learned Additional Public Prosecutor Mr. MR Tirthraj Pandya for the State. Inspite of service of notice on the respondent, he did not make his appearance in this appeal. However, to give him a fair opportunity, the matter was adjourned from time to time and finally, it was ordered to be listed today for hearing. As usual, today also there is no representation on behalf of the respondent. As it is an old appeal of the year 2013, which is listed in the Supplementary Board under the caption, “for final hearing in critically old matters of 11 to 20 years”, we are not inclined to further adjourn the hearing of the appeal. Therefore, we have decided to dispose of the appeal on merits, on the basis of the material available on record. 5. We have meticulously gone through the R&P and the evidence on record and subjected the entire evidence on record to strict judicial scrutiny. 5.1 The cause of death of the deceased is not in dispute in this case. As can be seen from exh. 42, PM Report and exh. 5. We have meticulously gone through the R&P and the evidence on record and subjected the entire evidence on record to strict judicial scrutiny. 5.1 The cause of death of the deceased is not in dispute in this case. As can be seen from exh. 42, PM Report and exh. 44, Final Cause of Death Certificate issued by PW-17, who is the doctor who held autopsy over the dead-body of the deceased, it is evident from the said medical evidence on record that the deceased sustained nine injuries including the injuries on his head and the left eye and ultimately, he succumbed to the said injuries and the cause of death, as per the opinion given by PW-17 is: “cranio cerebral damage and its complications” on account of the said injuries. Nothing was elicited from the cross-examination of PW-17 to discredit the testimony given by PW-17 relating to the cause of death of the deceased. In fact, the accused also did not seriously dispute the fact that the deceased sustained the said injuries and succumbed to the same. Therefore, considering the said testimony of PW-17 and exhs. 42 and 44, which is an unchallenged testimony, we have absolutely no hesitation to hold that the deceased met with the homicidal death. 5.2 Now, the crucial question that crops up for consideration is whether the accused caused the said injuries to the deceased and whether, he is responsible for the said homicidal death of the deceased. In order to substantiate the case of the prosecution that the accused caused the said injuries to the deceased with an axe and he is responsible for his homicidal death and that he committed the murder of the deceased, the prosecution has mainly relied on the evidence of PW-9, who is the de facto complainant and PW-11 to PW-13, who are the relatives of the deceased and PW-10, who is the inmate of that locality. Apart from the said oral testimony, the prosecution has also relied on the evidence of seizure of the weapon i.e. the axe, said to have been used in commission of the said offence which contained the bloodstains which according to the prosecution, matched with the blood group of the deceased and also the shirt of the accused, which contained bloodstains, which also matched with the blood group of the deceased. Precisely, the prosecution is relying on the aforesaid evidence to establish its case against the accused. 5.3 We have very meticulously subjected the evidence of the said oral testimony of PW-9 to PW-13 to strict judicial scrutiny. We would first like to deal with the oral evidence of PW-9 to PW-13. PW-9, who is the de facto complainant and the son of the deceased, stated in the FIR lodged by him which is of the first oral version, that on the date of offence on 11.01.2012, after he had his dinner, he went to the house of his relative which is near to his house to watch the TV and when he was returning to his house after watching the TV, that he found the accused following him and when he reached his house, that his father was found sleeping on a cot in front of his house and at that time, the accused shouted at his father as to why he did not cook food for him for his dinner and thereby, attacked him with an axe and caused injuries on his head and the left eye with the said axe. While this is the story narrated by him in the FIR which is the earliest version of PW-9, he completely deviated from the said version while giving evidence in the trial Court and he did not state that he went to the house of his relative to watch TV and while he was returning thereafter, that the accused followed him and he shouted at his father who was sleeping on a cot and attacked him with an axe. On the other hand, he has given a different version in his evidence in the Court stating that when he was sleeping in his house, that he heard the shouts of his father and when he came out of the house after hearing the shouts of his father that he has seen his father with injuries on the cot and he also found the accused standing at that place with an axe. Therefore, the said evidence given by him in his deposition runs completely contrary to the version mentioned by him in the FIR at the earliest point of time. Therefore, the said evidence given by him in his deposition runs completely contrary to the version mentioned by him in the FIR at the earliest point of time. So, when his evidence is found to be completely inconsistent with the earliest version in the FIR, it certainly affects the credibility of the testimony given by him in the Court. According to the version in the FIR, he claimed to be an eye-witness to the incident of the accused attacking his father with an axe but in his evidence given by him before the Court, he did not say that he has actually seen or witnessed the accused attacking the deceased with an axe and causing injuries to him. As per his evidence, he came out of his house after hearing the shouts of his father and he has only seen the accused standing at the scene of offence with an axe. So, it is obvious that the he is not an eye-witness to the actual incident of the accused attacking the deceased with an axe and causing injuries to him. Therefore, his evidence is not useful for the prosecution to prove that the accused actually attacked the deceased with an axe and caused injuries to him which resulted into his death. 5.4 As per the version of the prosecution, PW-11 who is the grandson of the deceased, also heard the shouts of the deceased while he was in his house and he immediately reached the scene of offence and that, at that time, he has seen the accused at the scene of offence holding an axe and the PW-11 snatched the said axe from the accused and preserved the same in the shelf of the house of the deceased. But, PW-11 completely turned hostile to the case of the prosecution. He stated that he did not snatch the axe from the hands of the accused and he did not preserve it in the house of the deceased. He stated that he did not witness anything relating to the incident. He also stated that he does not know how the incident occurred. Therefore, his evidence is also not useful for the prosecution to prove that the accused hacked the deceased with an axe. He stated that he did not witness anything relating to the incident. He also stated that he does not know how the incident occurred. Therefore, his evidence is also not useful for the prosecution to prove that the accused hacked the deceased with an axe. 5.5 Similarly, PW-12 and PW-13 who are the parents of PW-11 and who are the son and daughter-in-law of the deceased, also stated that after they heard shouts that they reached the scene of offence. So, they are also not the eye-witness to the incident of accused actually attacking the deceased with an axe. In fact, PW-13 stated in his cross-examination that when he came to the scene of offence that the dead-body of his father was already covered with a bad-sheet. Therefore, it is evident that he reached the scene of offence after the incident took place and he did not witness the accused attacking the deceased with an axe. Even PW-10, who is an inmate of the said locality and who is the nephew of the deceased did not support the prosecution case and he also stated that he did not witness the accused attacking the deceased with an axe and he reached the scene of offence after the incident took place. So, none of the witnesses cited as eye-witness by the prosecution, has stated that he has witnessed the accused attacking the deceased with an axe and causing injuries to him. So, virtually there is no semblance of evidence whatsoever on record to prove that the accused attacked the deceased with an axe and caused injuries to him. 5.6 Even though the axe was allegedly seized in this case in the presence of the mediators who are examined as PW-1 and PW-2, they did not support the case of the prosecution that the axe was seized in their presence. One startling aspect which is required to be noticed in regard to the seizure of the axe is that in the mediator report that was prepared, it is stated that the said axe contained a metal handle. Even PW-9 who is the de facto complainant stated that the axe contained a metal handle. But, the analyst who examined the said axe in the FSL stated that the axe examined by him contained a wooden handle. Even PW-9 who is the de facto complainant stated that the axe contained a metal handle. But, the analyst who examined the said axe in the FSL stated that the axe examined by him contained a wooden handle. Therefore, even though the analyst found blood on the said axe examined by him which matched with the blood of the deceased, it is evident that the axe which was seized, which contained a metal handle, was not examined by the analyst as it is containing a wooden handle. So even if any blood is found on the said axe examined by the analyst which matched with the blood of the deceased, it is evident that the said axe that was sent to the analyst is a planted object and it was not the actual axe that was seized which contained a metal handle. Therefore, the fact that the analyst found some blood on the axe which matched with the blood of the deceased is of no use to prove that it was the said axe which was used for commission of the offence. Further, the axe that was seized was not sent for examination by a finger print expert along with the finger prints collected of the accused to ascertain whether any finger prints of the accused are found on it or not. 5.7 Similarly, even though the shirt of the accused was also allegedly seized in the presence of the mediators, the mediators did not support the said version of the prosecution. So, seizure of the shirt from the accused is not proved in this case. Further, another surprising factor to be noticed in relation to the seizure of the shirt is, in the mediator report prepared at the time of seizure of the shirt of the accused, it is evident that no blood was found on the said shirt. But, surprisingly, the analyst found blood on the said shirt which matched with the blood of the accused. When it is stated in the mediator’s report that no blood was found on the shirt of the accused, it is really surprising to note that how the analyst found blood on the said shirt. Therefore, it is obvious that the said shirt containing blood which was sent for examination by the analyst, is also a planted object. So, it cannot be considered as an incriminating evidence against the accused. Therefore, it is obvious that the said shirt containing blood which was sent for examination by the analyst, is also a planted object. So, it cannot be considered as an incriminating evidence against the accused. 5.8 According to the prosecution, the incident took place during winter season on 11.01.2012. So, the version of the prosecution that the deceased was sleeping outside the house during winter season on a cot, also appears to be doubtful. Further, the incident took place during night time at about 9:00 p.m. in the night. There is nothing to indicate from the evidence on record that there is any source of light at the scene of offence. The IO did not collect any evidence to prove that there are any lights or any source of light at the scene of offence to identify the assailant. In fact, none of the witnesses has stated that he has seen the accused in a particular source of light and identified him. Therefore, it is another lapse in the case of the prosecution. 5.9 After considering the entire gamut of evidence on record, there is not even an iota of evidence on record to prove beyond reasonable doubt that it is the accused who is the culprit who attacked the deceased with the axe and caused injuries to him which resulted into his death. Moreover, PW-9, who is the de facto complainant and other witnesses stated that the relationship of the accused with the deceased is cordial. Therefore, he has no reason to attack him and kill him. So, the prosecution has failed to prove the case against the accused for the charges levelled against him beyond any reasonable doubt. The trial Court, upon considering the evidence on record, has arrived at a right conclusion on proper appreciation of the evidence on record and recorded a finding of acquittal in favour of the accused. The said finding of the trial Court suffers from no legal infirmity warranting interference in this appeal. Therefore, the impugned judgment of the trial Court is perfectly sustainable under law and it is not liable to be set aside. So, the appeal fails and it is liable to be dismissed. 6. Resultantly, the appeal is dismissed confirming the impugned judgment of the trial Court. Bail bond shall stand discharged. R&P be returned to the trial Court concerned, forthwith.