against the appellant. P.W.4 is also having enmity with the appellant and the villagers. Therefore evidence of P.W.4 cannot be considered and the evidence of P.W.4 is not trustworthy. There are two mahazar witnesses. Only one of the witnesses viz., P.W.5 was examined but other witnesses have not been examined by the prosecution. No proper explanation was given by the prosecution as to why they have sent the FIR belatedly to the Court. Therefore, under these circumstances, the learned Sessions Judge failed to consider the materials and however convicted the accused/appellant on the ground of sympathy over victim and on assumption. The settled proposition of law is that unless the prosecution has proved its case beyond all reasonable doubt, the court cannot convict the accused on the basis of assumption and the accused who is unable to take effective defence to disprove the case of the prosecution. However, he would submit that the appellant filed a petition under Section 391(1) Cr.P.C. and also filed documents praying to take additional evidence and documents on file. In such circumstances, the appellant has to be given opportunity to establish his defence and disprove the case of the prosecution. But the learned Trial Judge failed to consider the materials and therefore the petition filed by the appellant under section 391 (1) Cr.P.C., may be allowed and the judgment of the trial Court may be set aside, and after going through the additional evidence, the Court can either directly take the additional evidence or can remit the matter back to the Trial Judge to record the evidence afresh and passing of the judgment.
