BILAL NAZKI, J.

This appeal is filed by the accused in Sessions Case No.809 of 2002 in which he has been convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to rigorous imprisonment of life. He has also been fined of Rs.1000/-, in default, to undergo rigorous imprisonment for six months.

2. The story of the prosecution was that in the evening of 22nd May, 2002 the accused and the deceased had a scuffle and the accused left the place for short period returning with a knife and stabbed the deceased. Since many people were living below the bridge where this incident occurred, therefore, there were many eye witnesses to the incident. Charge was framed against the appellant under Section 302 of IPC, but, he pleaded not guilty. During the trial, the prosecution examined 11 witnesses and the case was based on the testimony of eye witnesses and also on evidence with regard to recovery of the knife which was allegedly used for the purpose of committing the offence.

3. Learned Advocate for the appellant submits that mainly there are four eye witnesses viz., PW-1 Bhau Salve (complainant), PW-2 Deepak (son of PW-1), PW-4 Ganesh & PW-5 Keshav. He submits that the evidence of the eye witnesses contradicts each other and, therefore, it should not be safe to rely upon the statements of any one of them. PW-1 Bhau Salve is the complainant who stated in his statement that he was a vegetable seller and was selling vegetables at Dadar beneath Tilak Bridge. He knew the accused. He also knew the deceased. Accused also used to sale vegetables beneath Tilak bridge. He identified the accused in the Court. Deceased was selling lemon beneath Tilak bridge. On 22nd May, 2002 at about 8 p.m. when he was sleeping beneath Tilak bridge, accused Ankush came along with his friends to the place after having drank the liquor and they come near Rinku Vasudev Reddy (deceased) who was sitting below the bridge. The accused was talking loudly. Deceased asked him and his friends to go to their home as they had consumed liquor. On this, there was a scuffle between the accused and the deceased. Witness woke up by that time there was scuffle going on between the accused and the deceased. The accused took out a weapon and assaulted deceased on his left side of the chest. Witness shouted at the accused and asked him why he was assaulting Rinku Reddy. Then the accused rushed towards the witness. Deceased caught him from his back and the witness also tried to catch hold the accused. Witness was pushed and he fell down and the accused ran away on the bridge. But the deceased caught hold of the right hand of the accused and knife hold by the accused fell on the ground. The witness chased the accused on the fly-over, he jumped from the fly-over on one vegetable seller near Tipsy hotel and sustained some injuries to his leg. He told nearby people about the assault by some persons and thereafter he ran away. After the accused ran, the witness came back to the spot and he found that the deceased was having bleeding injury on the left side of his chest and took him to K.E.M. hospital where the deceased died. Witness went to the police station. Police recorded his complaint and he identified his signature on Exh.8. He also identified the knife which was shown to him as knife which was used in assaulting deceased by the accused.

4. PW-2 Deepak is another eye witness, who is son of PW-1. On material facts, PW-2 contradicts PW-1. He stated that he was beneath Tilak bridge at Dadar and on 22.5.2002 at 7:45 p.m. he was sitting on the cot with his father. Whereas his father has stated that he was sleeping. After a while, friends of accused Ankush came and they had drank liquor. Rinku was standing and he was chit chatting with his father. PW-1 did not at all state that he had any chit chat with the deceased because according to him he was sleeping and when he woke up he saw accused and deceased entered in a scuffle. Whereas, PW-2 states that deceased was chit chatting with his father i.e. PW-1, when Ankush and his friends came after having liquor. These people, according to him, were shouting and abusing and the deceased asked them why they were shouting since they had eaten and had drank therefore they were shouting loudly. Rinku stood up and went near Ankush. There was scuffle between Ankush and Rinku. All other boys went. Ankush also went but came back within 5 to 6 minutes and started again quarreling. In that scuffle, Ankush took out some weapon and assaulted Rinku on his left side chest. His father i.e. PW-1 chased him after he came down from the cot. Therefore, this version was a different version. According to this version, there were two fights between Ankush and Rinku and it was during the second fight that the accused had stabbed the deceased and in between the first and second fight the accused had left the place of occurrence and gone some where. This is an altogether different story than the story given by PW-1.

5. PW-4 Ganesh is another eye witness who stated that he used to sale lemon outside Dadar railway station between Tilak railway bridge and Dadar railway station. He knew the accused and he also knew the deceased. Witness, accused and deceased also lived beneath Tilak bridge. He identified the accused. On 22.5.2002, he and Prakash Tony were talking to each other after business was over at about 7:45 p.m. to 8:00 p.m. There was a conversion going on between Ankush Chavan and Rinku Reddy and some boys. Rinku asked the boys what was going on and go away. After a while, Ankush Chavan came back and he was having knife in his hand. Ankush Chavan assaulted Rinku Reddy on the chest at left side. Thereafter Ankush Chavan ran on the bridge. The witness, Ganesh, Prakash Tony and Deepak followed the accused to catch him. Now, as far as the incident is concerned, he supports the story given by PW-2, but, neither PW-1 nor PW-2 stated that the accused was chased by so many people. According to PW-1 he was the only person who chased him. According to PW-2 also, only PW-1 chased the accused. He also stated that after the incident they went to K.E.M. Hospital along with the deceased at 9:00 p.m.. They met police in K.E.M. Hospital.

The witness, Prakash Tony, Ganesh, Deepak and Keshav were in K.E.M. Hospital. Only one Ganesh was there in the hospital with him. In the hospital, police did not make any enquiry with him. He himself did not tell anything to the police. He did not feel it necessary to immediately approach the police in K.E.M. Hospital. He was confused, therefore, he simply sat after the patient was declared dead, then chowky police asked him what had happened then he narrated the story. He introduced another controversy by saying that there was a police chowky beneath Keshav Soot Bridge and there were always one or two policemen in the Chowky. He did not go to the said Chowky to inform about the occurrence. Thereafter he has further stated that there was no chowky, but, there was table and two constables were posted at that place. From the place of occurrence the policemen were at 2 to 3 minutes walk. It is surprising that if there is police chowky just at a distance of 2 to 3 minutes walk, the police had no information about this occurrence and nobody out of so many, who claimed to be present, went to that police chowky to inform the police.

6. PW-5 Keshav is another projected eye witness. He has also having a cart for running business at the same place where other witnesses were running their business. He was sitting on the foot-path. Rinku Reddy was standing with Damu @ Bhau Salve (PW-1). Some boys of Pardhi community were doing business. Rinku Reddy asked these boys since they had eaten and drank they should go and sleep. All other boys went away. Accused also went away, but, came back with something in his pocket. Accused returned back within 10 minutes bringing something in his pocket. Ankush started abusing Rinku Reddy. Rinku Reddy directed Ankush to go away. Ankush had pushed him and scuffle started between them. Bhau Salve was intervening in the scuffle to separate them. Ankush Chavan took out something from his pocket and hit Rinku Reddy below the chest on the left side. when Bhau Salve tried to catch hold Ankush, Ankush tried to assault Bhau Salve also. Ankush ran away showing knife to Bhau Salve. He went towards Keshav Soot Fly-over bridge. This is also a third version. PW-1 stated that knife fell down from the accused at the place of occurrence and he ran away and PW-1 had chased him. But, this witness stated that PW-1 did not chase him. Accused therefore threatened him with knife.

7. These statements are giving different versions. Therefore, it is not safe to rely on these statements. There is another reason for not believing these witnesses and that is relating to recovery of the knife. PW-1 was categoric that the knife fell down from the hand of the accused at the place of occurrence, but, the police produced witness PW-3 who stated that the knife was recovered after three days of occurrence based on a statement of discovery made by the accused while he was in custody. The police maintained that the knife used for commission of offence was recovered after three days of the occurrence when the discovery statement was made by the accused. But, PW-1 maintained that the knife had fell from the hand of the accused at the place of occurrence at the time of occurrence. There is no evidence that the accused came back to the place of occurrence after committing the offence and took away the knife. Another reason is that all witnesses maintained that the accused and his friends were all drunk and, therefor, they were creating scene to which the deceased had objected. But, there is nothing on record to show that either the accused or his friends were actually drunk at the time of occurrence.

8. For these reasons, we do not find that the prosecution has proved the case against the accused beyond doubt. Therefore, the conviction and sentence vide impugned judgment and order dated 11th June, 2003 passed by the learned Additional Sessions Judge for Greater Mumbai in Sessions Case No.809 of 2002 is set aside. Criminal Appeal is allowed. The accused be released from custody if not required in any other case. Fine amount, if paid, shall be refunded to the accused. Criminal Appeal is disposed of accordingly.

9. We must place on record that the Advocate appointed by the Legal Services Authority for the accused did not appear. Therefore, we had requested an Advocate Mr.Kedar Patil, who was present in Court to prepare this case. He has ably assisted this Court. Therefore, we direct the Legal Services Authority to pay a token fee of Rs.5000/- (Rs.Five Thousand Only) to Mr.Kedar Patil, Advocate.