A.L.DAVE, J.

1. These two appeals arise out of a judgment and order rendered by City Sessions Court, Ahmedabad, in Sessions Case No. 266 of 2003, on August 20, 2004.

2. The appellant Hashmukhbhai @ Shethi Shankarbhai Solanki, appellant in Criminal Appeal No. 250 of 2005, came to be arraigned as an accused No.1 before the trial court and the respondent in Criminal Appeal No. 2211 of 2004 viz. Suraj @ Shant Pannabhai Solanki came to be arraigned as accused No.2 before the trial court. They were alleged to have committed murder of Chimanbhai Narsinhbhai on November 25, 2001 at about 18:30 hours on G. D. Road, Saijpur, Vijay Kamdar Society, where it is alleged that Suraj @ Shant Pannabhai Solanki caught hold of the deceased and Hasmukh @ Shethi Solanki inflicted a knife blow on account of past animosity. An FIR was lodged by brother of the deceased Mahendrabhai with Naroda police station on the basis of which offence was registered and investigated and ultimately charge sheet was filed in the court of Metropolitan Magistrate, Ahmedabad, who in turn, committed the case to the Court of sessions and Sessions Case No. 266 of 2003 came to be registered. Charge was framed against both the accused at Exh.3 for the said offences to which they pleaded not guilty and came to be tried. The trial court, after considering the evidence led by the prosecution, acquitted Suraj @ Shant Pannabhai Solanki-original accused No.2 and respondent in Criminal Appeal No.2211 of 2004 whereas convicted original accused No.1 Hashmukhbhai @ Shethi Shankarbhai Solanki, the appellant in Criminal Appeal No.250 of 2005.

3. Since these two appeals arise out of same judgment and order, they are heard together and are disposed of by this common judgment. The appellant and the respondent being the accused in the sessions Court, they are referred to by their original status and number of the accused for the sake of convenience.

4. Criminal Appeal No. 2211 of 2004 is preferred by the State of Gujarat against acquittal of accused No.2 whereas Criminal Appeal No.250 of 2005 is preferred by the original accused No.1 against his conviction.

5. Learned advocate Mr. Dholakia, appearing for Mr.Amin, submitted that he appears for both the accused persons in these appeals. He submitted that the prosecution has projected five witnesses as eye witnesses to the incident, however, out of five only one has supported the prosecution case. He is PW:1 viz. Mahendrabhai Narsinhbhai who happens to be the brother of the victim. The remaining four witnesses have not supported the prosecution case. The whole case depends on testimony of this witness. Mr. Dholakia submitted that the entire case depends on sole testimony of a witness, the evidence of such witness must be of sterling quality and should be closely scrutinized. In the instant case according to Mr. Dholakia, the evidence of witness Mahendrabhai suffers from a number of defects which would raise doubt on his claim of being an eye-witness. Mr. Dholakia submitted that conduct of this witness is not natural. Though he claimed that he was at a distance of about 25 feet when his brother was attacked. He takes no step to rescue his brother. Even after the attack when the victim starts running towards home, this witness does not try to help him or to lend support to him. He reaches home much after the victim reaches home. Mr.Dholakia submitted that therefore the conduct of this witness is not natural.

5.1 Apart from the unnatural conduct, the testimony of this witness suffers from the defect of being falsified by contemporaneous circumstances. One of the circumstances is relating to this witness is the incident occurred near water tank which is at a distance of about 50 feet from the house of the victim and the witness. The panchnama of place of offence (Exh.13) if perused, shows that there was no blood at the said place of incident. Mr. Dholakia submitted that this witness has asserted in his cross examination that there was bleedi