Criminal Appeal No.850 of 1982

3rd August, 1996

Petitioner Counsel: Mrs. V. R. BHONSALE with Mr. R. S. BHONSALE and Ms. SANGEETA PATANKAR
Respondent Counsel: Ms. PURNIMA KANTHARIA

Cases Cited:
AIR 1974 SC 778 [Para 11]
AIR 1976 SC 2263 [Para 15]
AIR 1974 SC 1822 [Para 17]
1959 All. L. J. 423 [Para 17]

JUDGMENT

VISHNU SAHAI, J. : Vide judgment and order dated 30/10/1982 passed in Sessions Case No.132 of 1981, the learned Additional Sessions Judge, Pune convicted and sentenced the appellants in the manner stated hereinafter :-

(i) Under Section 302 read with 149 IPC, imprisonment for life; (ii) Under Section 148 IPC, RI for four months; (iii) Under Section 323 read with 149 IPC to six months' RI; and (iv) Under Section 147 IPC, but awarded them no separate sentence.

Hence this appeal.

2. Briefly stated the prosecution case runs as under :-

The informant Babu Eknath Bibve PW 2 at the time of the incident was serving in Sahyadri Dye Stuff and Chemicals of Mafatlal Industries, Vithalwadi, Pune. There were about 400 employees working with the company. There was a Union of which Somnath Naik was the General Secretary. All the workers were members of the said Union. On the Managing Committee there were five representatives of the Union viz. himself (PW 2 Babu Bibve), appellant Bhagaram Bhandagale, Rajjak Tamboli, Gopal Welkar and Shivram Bhuvad PW 10. 1st August 1981 happened to be the birthday of Somnath Naik. A meeting was held by Babu Bibve and four others and it was resolved that every worker should pay a contribution of Rs. 10/- for presenting one car to Somnath Naik on his birthday. Babu Bibve and Shivram Bhurad ojected to this. The workers of the factory as usual were to get their salaries on the 7th of the month. On 7/6/1981 appellant Bhagaram Bhandagale, Rajjak Tamboli and Gopal Welkar sat on a table at the place where the salaries were being disbursed to workers so that they could collect the contribution of Rs.10/- from each of the workers. 118 workers are said to have given the contribution to appellant Bhagaram Bhandagale and others. On 9/6/1981 Bhagaram Bhandagale, Rajjak Tamboli and Gopal Welkar put up a notice which was displayed on the notice board of the Company that they were resigning from the membership of the committee as many workers had not paid their contribution of Rs.10/-. This they construed as want of confidence in the members towards them. On 15/6/1981 Somnath Naik visited the Company. He called the five committee members viz. Babu Bibve and others. A meeting was held. The resignation of Bhagaram Bhandagale, Rajjak Tamboli and Gopal Welkar was discussed and it was decided to call general body meeting of the workers. Accordingly the general body meeting was called in the Congress House, Shivaji Nagar, Pune at 9.30 a.m. on 18/6/1981. In the said meeting the resignation of Bhagaram Bhandagale, Rajjak Tamboli and Gopal Welkar was accepted by majority vote. Thereupon Somnath Naik delivered a speech that as there was no unity among the workers, he would stop working as the secretary and the workers should only approach him after their fight was over. After the speech he left. Thereafter there was a heated discussion between the members.

The same day immediately after Somnath Naik had left, appellants Bhagaram Bhandagale, Mohan Mohol, Shripati Ambede and Datta Mohol started hurling abuses at Babu Bibve, Vipul Ahire, Baban Thorave and their supporters. On the point of iron bars and sticks they said that they would see as to how Babu Bibve and others would work with the Company. Thereafter Babu Bibve, Vipul Ahire and Baban Thorave and their supporters went to Shivaji Nagar Police Outpost for reporting the incident and an oral report of the incident was lodged there at about 11.30 or 11.45 a.m. by Vipul Ahire. Thereafter they went to Dattawadi Police outpost in the area of which fell the Company (of Babu Bibve and others) for reporting the incident in the form of a memorandum to be given by them. At Dattawadi Police outpost they found PSI Bhoir PW 15 present.PSI Bhoir asked them to report the matter at Swargate Police Station. They prepared a draft memorandum to be submitted at Swar-gate police station and for getting that memorandum typed they deputed Shivram Bhuvad, Bapu Waghmare and Balu Thorat.

At about 3.30 - 3.45 p.m. the same day (18/6/81) while Babu Bibve, Vipul Ahire and others were proceeding to Swar-Gate Police Station for giving the memorandum and had reached near Sane Guruji Smarak Mandir, they found at a distance of about 100 feet from the house of appellant Shripati Ambede, the said appellant along with other appellants standing there. While Babu Bibve and others were proceeding by the road, appellants Shripati Ambede, Digambar Chavan and Datta Mohol rushed from the rear side and were followed by the remaining appellants. Appellant Shripati Ambede was holding a knife and appellant Digambar Chavan was holding an iron bar. Appellant Datta Mohol gave a fist blow on the face of Vipul Ahire. Immediately appellant Shripati Ambede inflicted two blows with knife, one each on the neck and chest, of Vipul Ahire. Babu Bibve was very close to Vipul Ahire and hence tried to catch Shripati Ambede. At that time Digambar Chavan started assaulting Vipul Ahire with iron bar. The remaining appellants started pelting stones on Babu Bibve, Vipul Ahire and others. As a consequence of hurling of stones Babu Bibve, Baban Thorave, Gangaram Kavade and Ganpat Batale sustained injuries. Appellant Shripati Ambede was moving his knife and Babu Bibve received injuries therefrom on both of his hands in his bid to catch him. After assaulting Vipul Ahire and others the appellants are alleged to have run away.

Immediately thereafter Babu Bibve and others took Ahire in an autorickshaw to Sassoon Hospital, Pune. The evidence is that at the said hospital he was taken into the operation theater. However, the doctor who medically examined Vipul Ahire in Sassoon Hospital has not been examined by the prosecution. Vipul Ahire is said to have succumbed to his injuries two days later i.e. on 20/6/1981 in Sassoon Hospital.

3. Sometimes after Babu Bibve had reached the Sassoon Hospital, PI Shete PW 16 of Swar Gate Police Station reached there. On the version of the incident as narrated to him by Babu Bibve he recorded the FIR, Exh. 30. On its basis C.R.No.247/81 under Sections 147, 148, 307 and 149 IPC was registered at Swar Gate Police Station.

4. From Sassoon Hospital PI Shete along with the informant Babu Bibve came to Police Outpost, Dattawadi. At that time he found appellants Shripati Ambede and Digambar Chavan present there. He arrested them and recorded complaint of Shripati Ambede. That complaint is Exh.69. The evidence of PI Shete is that he recorded it at 8.30 or 8.45 p.m. (on 18/6/1981).

After recording Shripati Ambede's complaint PI Shete went to the place of the incident and in the presence of public panchas prepared the spot panchanama (Exh.24). On 19/6/1981 he recorded the statements of 21 witnesses, including some eye witnesses.

5. On 19/6/1981 PI Shete sent the injured witnesses Babu Bibve, Ganpati Batale, Gangaram Kavade and Baban Thorave for medical examination to Sassoon Hospital. In the said hospital the injuries of the said persons were medically examined. Excepting Babu Bibve others were examined by Dr. Dilip Pawar PW 13. All these persons were medically examined on 19/6/1981 itself.

At 8.50 p.m. he examined Ganpat Babu Batale abraded area on left parietal region of scalp 1/2" X 1/4".

At 8.55 p.m. he examined Gangaram Kawade. On his person he found two injuries viz. swelling over dorsum of right hand and contusion on lower back on left side.

At 9.00 p.m. he medically examined Baban Thorave and found on his person two injuries viz. diffused swelling on left thigh and abraded area on the left side of the uppr lip.

In the opinion of Dr. Pawar the injuries of the said three persons could be caused by hard and blunt object like pelting of stones.

The same day (19/6/1981) Dr. Shirish Patwardhan PW 14 of Sassoon Hospital medically examined Babu Bibve and found on his person three abrassions which in his opinion could be caused by a sharp object like knife.

6. It is significant to point out that the injuries of appellant Shripati Ambede were medically examined within one hour of the incident i.e. at 4.30 p.m. on 18/6/1981 by PW 13 Dr. Dilip Pawar. He was sent for medical examination under a Yadi Exh.58. Dr. Pawar found the following injuries on Shripati's person :-

(1) C.L.W. over forehead right side at hair line 1/2" X 1/4" X scalp deep bleeding present. Contused lacerated wound. (2) Swelling over nose bleeding through nose present. (3) Contused lacerated wound over left palm 1/2" X 1/4" X muscle deep bleeding present. (4) Abrasion over left middle finger at tip over palmer aspect. (5) Tenderness over lumber region of back left side. (6) Abrasion over right shoulder 1" X 1" reddish. (7) Swelling over upper lip with abrasion area.

In the opinion of the doctor Injury Nos.1, 2, 6 and 7 could have been caused by hard and blunt object like pelting of stones and Injury Nos.3 and 4 could have been caused to Shripati Ambede while he was holding a knife and somebody else was trying to snatch the same.

7. The post mortem examination of the dead body of Vipul Ahire was conducted on 20/6/1981 between 3 p.m. to 4.30 p.m. by Dr. Kalikrishna Banerjee PW 11. On the corpse Dr. Banerjee found the following injuries :-

(1) Sutured (surgically) wound present over left side of neck back and lower part measuring 8" in length with margins opposed with 20 sutures. On removal of sutures, the margins were seen not united. The under line neck muscles found all sutured in layers. There was drainage gauge seen inside. On removal of the sutures vertebral artery and brachial plexus of nerves all found severed and sutured. The wound was found 5" deep directed from left towards right side and inner and backwards. Antemortem blood clots were present.

(2) Sutured stab wound present over left wall of chest over upper and outer quadrant placed 1" above the left nipple at 2 O'clock position measuring 1" in length to left nipple and measuring 1" in length with margins opposed with two sutures. On removal of the sutures, the margins seen not united and the wound was found 1/2" in width and 5" deep directed from the left side towards the right side upward and inwards chest walls muscles found sutured space. On deep disection the wound was found to penetrate the left lung inter labular space with outer injury measuring 1" X 3/4" X 1" deep. Antemortem clots were present all over.

(3) Horrizontaly placed, surgically operated (theracotomy wound) sutured found present on the left wall of chest middle line measuring 10" in length with margins opposed owing 15 sutures. On removal of the sutures the margins were seen not united and the chest wall muscles all were seen suturred in layers systematically.

(4) Surgically operated drainage wound present over left lateral part of chest lower and outer part placed 3" below injury No.3 measuring 1" X 1/4" X 4" deep into the chest cavity, for internal drainage of the chest cavity.

(5) Bruise mark present over right leg upper part and outer part measuring 3 1/2" X 1". Antemortem clots seen present on section.

(6) Surgically operated two venisection wounds present one above each ankle joint inner front measuring 1" X 1/4" X skin deep.

(7) Sutured venisection wound present above right elbow front. Measuring 1" X 1/4" X skin deep.

On internal examination Dr. Banerjee found the pleura and left lung to be ruptured on the right side. This damage was beneath Injury No.2. He also found internal damage like damage to vertebra etc. below Injury No.1.

In Dr. Banerjee's opinion Injury Nos.1 and 2 could be caused by a sharp and penetrating weapon like knife, Injury Nos.4, 6 and 7 by surgical operation for revival of patient and Injury No.5 by a hard and blunt object like iron bar.

In the opinion of Dr. Banerjee the deceased died on account of shock and haemorrhage due to injuries to vertebra and penetrating injury to the left lung. He also opined that both the Injury Nos.1 and 2 were individually and collectively sufficient in the ordinary course of nature to cause death.

8. After the death of Vipul Ahire on 20/6/1981 PI Shete converted the case from 307 IPC to one under Section 302 IPC. He sent the blood stained clothes of the deceased and some other articles stained with blood to chemical analyst. On 20/7/1981 he received the report of the chemical analyst. The next day he submitted the charge-sheet against the appellants. The case was committed to the court of sessions in the usual manner.

9. In the trial court the appellants were charged on a number of counts, including 302 IPC simplicitor and in the alternative 302 read with 34 IPC. To the said charges they pleaded not guilty and claimed to be tried. During trial apart from tendering and proving some documentary evidence prosecution examined as many as 16 witnesses. Out of them eight viz. Babu Bibve, Illahi Mujawar, Ashok Mundha, Gangaram Kawade, Chandrakant Ranjane, Avinash Thorat, Ganpat Batale and Baban Thorave were examined as eye witnesses. In defence no witness was examined. The learned trial judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated above.

Hence this appeal.

10. We have heard Mrs. V.R. Bhonsale for the appellants and Mrs. Purnima Kantharia for the respondent, at some length. We have also perused the material exhibits tendered by the prosecution; the depositions of the prosecution witnesses; statements of the appellants recorded under Section 313 Cr.P.C.; the counter report of the incident lodged by appellant Shripati Ambede, and the impugned judgment. After giving our anxious consideration to the matter we are squarely satisfied that there is merit in this appeal and it must be allowed.

11. In the instant case there are counter versions of the same incident; one emanating from the FIR lodged by Babu Bibve PW 2 and the other from the FIR lodged by appellant Shripati Ambede. Often a mistake which is committed by the courts is to straightway start assessing on probabilities and on the weight of the evidence on record as to which version is correct. This is a palpably erroneous approach. It needs to be emphasized that the burden on the accused to bring his case within the ambit of a general exception, in terms of Section 105 of the Indian Evidence Act, only arises after the prosecution has discharged the initial burden of proving its case beyond reasonable doubt as enjoined on it by Section 101 of the Indian Evidence Act. Assuming that the prosecution fails to discharge its initial burden of proving its case beyond reasonable doubt, the court would have no option but to acquit the accused despite the fact that it may feel that the counter version of the incident spelt out by the accused is a tissue of lies. The proposition is far too well settled to require the support of any authority. But there is no dearth of authorities of the Apex Court in support of this proposition. Our purpose would be served if we only refer to one viz. that reported in AIR 1974 SC 778 (Sawal Das Vs. State of Bihar) wherein in paragraph 10, Their Lordships of the Apex Court observed thus :-

"10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, it believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is : Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt ?" (Emphasis supplied).

12. Naturally we first turn to the question whether the prosecution has discharged the burden of proving its case beyond reasonable doubt. To that we have our grave reservations for the reasons mentioned hereinafter.

In the first place we find that in the instant case the place of incident is disputed; whereas according to the prosecution the incident took place near Sane Guruji Smarak Mandir, according to the appellant Shripati Ambede the incident took place at his house. The evidence of Babu Bibve is that Shripati Ambede's house is at a distance of about 100 feet from Sane Guruji Smarak Mandir (see paragraph 7). In this connection it would be pertinent to point out that PW 16 PI Balaji Shete, the Investigating Officer, went to the place of the incident, alleged by the prosecution, the same night and to our dismay in paragraph 8 he has stated that he found neither any blood nor any stone on it. He also stated in the said paragraph that it is not mentioned in the panchanama of the scene of offence (Exh.24) that it had rained. A bare perusal of Injury Nos.1 and 2 sustained by the deceased, which have been mentioned in paragraph 7 would show that pursuant to the knife assault launched by appellant Shripati Ambede blood must have gushed out from the neck and chest of the deceased. Perusal of the evidence of all the eight eye witnesses shows that heavy pelting of stones was resorted to by appellants, other than Shripati Ambede and Digambar Chavan. In such a situation absence of blood and stones on the place of the incident makes us have grave reservations about the claim of the prosecution that the incident took place at Sane Guruji Smarak Mandir. Prosecution has furnished no explanation for their abscence. In our view it adversely affects the credibility of the eye witnesses because they categorically state that the incident did take place at Sane Guruji Smarak Mandir.

In some cases the failure of the prosecution to prove the place of the incident may introduce a fatal infirmity in its case and this certainly is one such case; especially because the defence has challenged the place of incident.

13. Secondly, we find that the manner of the assault as given out by the eye witnesses stands belied by probabilities and medical evidence. In the instant case the witnesses have consistently stated that appellant Nos.3 to 10 (Original accused Nos. 3 to 10) indulged in heavy pelting of stones. This to us appears to be doubt-ful in view of the fact that from the place of the incident not even a single stone was recovered by the Investigating Officer.

The story of pelting of stones is also doubtful for another reasons. The evidence of some of the eye witnesses, including PW 8 Gangaram Kavade, an injured witness, is that the said accused persons were armed with sticks and iron pipes. If that was so to us it appears to be extremely improbable that instead of using sticks and iron pipes, they would have resorted to pelting of stones. This is a glaring improbability in the prosecution story.

Another infirmity in the ocular account in connection with pelting of stones is that eye witnesses have stated that stones were also pelted towards deceased Vipul Ahire. A perusal of the ante-mortem injuries of the deceased and the opinion of the autopsy surgeon regarding the manner in which they were caused (see para 7) shows that not a single injury attributable to pelting of stones was found on the body of the deceased.

There are two other infirmities between the manner of the incident as deposed to by the eye witnesses and the ante mortem injuries suffered by the deceased. The first is that all the eye witnesses have stated that appellant Datta Mohol gave a fist blow on the face of the deceased. However, a perusal of the ante mortem injuries of the deceased and the opinion of the autopsy surgeon regarding the manner in which they were caused (See para) would show that no injury attributable to fist was either found on the face of the deceased or on any other part of his body. The second way in which the ocular account is contradicted by the autopsy report of the deceased is that PW 2 Babu Bibve in his cross-examination (para 19) has stated that even after Vipul Ahire was moving after the assault made on him by knife by appellant Shripati Ambede, appellants Digambar Chavan and Datta Mohol were attacking him by iron bars; though he could not mention the number of blows struck by them. This is belied by the post-mortem report of the deceased for the autopsy surgeon Dr. Banerjee found only one injury attributable to iron bar on the person of the deceased viz. Injury No.5.

14. Another infirmity and a glaring one too in the ocular account is the inability of the prosecution witnesses to explain the injuries of appellant Shripati Ambede, particularly Injury Nos.1 and 2. The injuries of Shripati Ambede were medically examined within one hour of the incident taking place i.e. at 4.30 p.m. on 18/6/1981. We have detailed them in para 6 . Injuries Nos. 1 and 2 sustained by Shripati Ambede read thus :

(i) Contused lacerated wound over forehead right side at hair line 1/2" X 1/4" X scalp deep. Bleeding present.

(ii) Swelling over nose. Bleeding through nose present.

None of the eye witnesses have sought to explain either of these injuries or Injury Nos.5, 6 and 7 sustained by Shripati Ambede.

Mrs. Kantharia, learned Additional Public Prosecutor with her customary tenacity tried to explain these injuries on what may be termed as an argument falling, in the realm of conjecture. Her submission is that when eight persons were throwing stones on the deceased and others then it may be that some of those stones may per chance have struck Shripati Ambede and caused his injuries. We must admit that on the first blush the argument appeared to be attractive. However, on a deeper reflection and perusal of the evidence on record we found the same to be devoid of substance. The hollowness of the arguement of Mrs.Kantharia, apart from the fact that no witness states that as a result of pelting of stones by the accused injuries of Shripati Ambede were caused, is exposed by the prosecution evidence itself. In this connection it would be necessary to refer to the evidence of PWs 2 and 3, Babu Bibve and Illahi Mujawar respectively. PW 2 Babu Bibve in his cross-examination in paragraph 24, stated that Shripati Ambede had not sustained any injury in his presence at the time of the incident. He further stated that he had not seen anybody attacking Shripati Ambede at the time of the incident. PW 3 Illahi Mujawar in his examination-in-chief stated that pelting of stones continued even after Vipul Ahire (Deceased) was taken to Sassoon Hospital. However, in his cross-examination (in paragraph 10) he admitted that after attacking Vipul Ahire, Shripati Ambede, Digambar Chavan and Datta Mohol ran away. If the said evidence is read together, as it should, it means that prior to Vipul Ahire being rushed to Sassoon Hospital, Shripati Ambede had run away from the place of the incident. If that was so then there was no question of his injuries being caused as a result of pelting of stones which continued after Vipul Ahire was rushed to Sassoon Hospital. But to repeat the said arguement of Mrs. Kantharia falls in the realm of conjecture and courts do not decide cases, certainly not those like the present where ten people have been sentenced to life imprisonment, on conjectures. They decide them on concrete evidence. However the ingenious manner in which Mrs. Kantharia sought to explain the injuries of Shripati Ambede, has no evidentiary foundation., Hence this submission of Mrs. Kantharia fails.

15. In our view the infirmity in the ocular account, to explain the injuries of Shripati Ambede, coupled with the infirmities mentioned in paragraphs 12 and 13, although the prosecution case may be supported by as many as eight eye witnesses, render it unworthy of acceptance. It is a trite that evidence has to be weighed and not counted.

The Apex Court in the decision reported in AIR 1976 Supreme Court 2263 (Lakshmi Singh v. State of Bihar) in paragraph 11 has observed thus in respect of the failure of the prosecution witnesses to explain the injuries of accused :-

" ......

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case....."

In our view the present case is covered by first two inferences which are open to the court to draw as per A.I.R. 1976 S.C. 2263 (Supra).

16. Mrs. Kantharia, learned Additional Public Prosecutor vehemently contended that the defence version of the incident is a tissue of lies and warrants to be rejected. She urged that the defence version of the incident as has been suggested to the eye witnesses is that Babu Bibve PW 2 and Vipul Ahire (deceased) went to the house of appellant Shripati Ambede and called him outside. There both of them and some others assaulted Shripati Ambede who sustained bleeding injuries. She contended that the falsity of the defence case can be guaged by the fact that the defence version of the incident does not explain the injuries of the four injured witnesses viz. Babu Bibve, Ganpati Batale, Gangaram Kavade and Baban Thorave, PWs 2, 7 8 and 9 respectively. She also contended that the defence explanations with respect to the injuries of the deceased Vipul Ahire viz. that someone from the adjoining zopadpatti came and assaulted Vipul Ahire with a knife sounds to be wholly unconvincing and fanciful. We cannot have any serious quarrel with the said contention of Mrs. Kantharia but the quarrel with her certainly is on the implications resulting from the falsity of the defence case. The falsity of the defence case does not make the prosecution case true and does not relieve the prosecution of its obligation, to prove its case beyond reasonable doubt, in terms of the burden cast on it by Section 101 of our Evidence Act. It is a trite that the prosecution cannot succeed merely on the falsity or frailities of the defence. It has to swim or sink independently; depending on the merits or demerits of its own case. For the reasons mentioned in paragraphs 12, 13 and 14 the Prosecution case sinks in the instant case.

17. Even if we were to accept Mrs. Kantharia's contention referred to in paragraph 16, the situation which would emerge would be that both the prosecution and the defence version of the incident are untruthful and hence cannot be relied upon. In our view when both the prosecution and the defence are suppressing their agression and are not coming out with as to who initiated the aggression, the court cannot make out a third case. The philosophy behind such a proposition is that courts do not beyond a certain limit, enter into the realm of speculation and that the prosecution must stand on its own legs. We are fortified in our view by the decision of the Apex Court reported in AIR 1974 SC 1822 (Jamuna v. State of Bihar) wherein in para 12 Their Lordships of the Apex Court have observed thus :-

"12. As neither the prosecution nor the defence have, in the case before us, come out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents took place in which so many persons, including Laldhari and Ramanandan, were injured, courts can only try to guess or conjecture to decipher the truth if possible. This may be done, within limits, to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case."

We also cannot refrain from referring to one of the earliest decisions on this proposition which was pronounced by a Bench of the Allahabad High Court and reported in 1959 Allahabad Law Journal P.423 (Shubrati Vs. State of U. P.). A passage from the said decision reads thus :-

"It is well settled principle of criminal law that an accused can be convicted only when on the evidence produced the court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be based on mere possibilities. Nor is it permissible for the court to speculate as to what had really happened. If both the parties come to court with untrue facts and conceal the real truth they have themselves to blame and they cannot expect the Court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case the Court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. In certain circumstances it may be found to be an impossible task. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. In such a case it is not open to the court to make out a third case which is different from the case set up by both the parties. In such a case the Court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way or the other. The result of such a finding may be that all the persons who stand as accused in the case may have to be given the benefit of doubt. But that cannot be helped. The defective investigation and the conduct of the parties themselves are equally responsible for that regrettable result. In such a case there can be no question of recording any conviction."

18. For the reasons mentioned above we cannot accept that the incident took place in the manner deposed to by the eye witnesses examined by the prosecution. In our view the prosecution witnesses are not coming out with the whole truth. Truth which is bitter to the prosecution is being suppressed by them. Hence we are of the view that the prosecution has failed to bring home the guilt of the appellants beyond reasonable doubt.

19. Pursuant to the above discussion we are implicitly satisfied that this is a fit case in which the appellant deserve the benefit of doubt. We accordingly extend the same to them.

20. In the result this appeal is allowed. The convictions and sentences of all the ten appellants recorded vide the impugned judgment, on the various counts, are set aside. The appellants are given the benefit of doubt and are acquitted. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.

Before parting with the judgment we would be failing in our fairness if we do not record our appreciation for the assistance which we have received in the disposal of this appeal by the learned counsel for the parties.

In case an application for a certified copy of the judgment is made by the learned counsel for the parties the same shall be issued to them on payment of necessary charges on an expedited basis.

Appeal allowed.