JUDGMENT Hon’ble Vijay Kumar Verma, J.—State of U.P. has preferred this Appeal against the judgement and order dated 30.7.2002 passed in Session Trial No. 865 of 1993 by Sri Dharam Singh, the then Additional Sessions Judge/Fast. Track Court. No. 2, Moradabad, who acquitted the accused-respondents Dinesh and Viresh of the charges under Section 302 and 307/34 I.P.C., the accused-respondents Kamesh and Subhash of the charges under Section 307 and 302/34, I.P.C. and the accused-respondents Brijesh @ Vijai Pal, Yogesh, Munish and Narendra of the charge under Section 120-B, I.P.C. in case crime No. 125 of 1993, P.S. Chhajlet, District Moradabad. 2. The accused-respondents Dinesh, Viresh, Kamesh and Subhash were put on trial on the charge of committing the murder of Satyavrat and causing injuries to Smt. Santosh and Manoj on 28.5.1993 at about 9.00 p.m. in Village, Kuda Meerpur, P.S. Chhajlet (Moradabad). The charge levelled against, the accused-respondents Brijesh @ Vijai Pal, Yogesh, Munish and Narinder was of hatching conspiracy to commit the murder of Satyavrat. First Information Report regarding the incident was lodged at P.S. Chhajlet (Moradabad) on 29.5.1993 at 5.30 a.m. by Manoj Kumar S/o Satyavrat r/o Village Kuda Meerpur. A case under Section 302/307, I.P.C. at case crime No. 125/93 was registered against Dinesh, Viresh, Kamesh all sons of Mahesh and Acharya, maternal brother of Dinesh. 3. Shorn of unnecessary details, the case of the prosecution in brief is that on 28.5.1993 at about 9.00 p.m., the complainant Manoj Kumar and his father Satyavrat were going to their house from baithak. Kanta Prasad, cousin brother of complainant was also going with them. When they reached in front of the house, the accused Dinesh, Viresh, Kamesh and their maternal brother Acharya having tamanchas and gun came from behind. It is alleged that first of all the accused Dinesh fired on Satyavrat and immediately thereafter, Viresh also fired on him, due to which he (Satyavrat.) sustained injuries and died on the spot. When the complainant Manoj Kumar and his mother Smt. Santosh tried to save Satyavrat, the accused Kamesh and Acharya fired on them, due to which they also sustained injuries. This incident is said to have been witnessed by Sunil Kumar and other persons, who reached there on hearing the noise. The accused persons are said to have been recognised in the light of lantern. 4. This incident is said to have been witnessed by Sunil Kumar and other persons, who reached there on hearing the noise. The accused persons are said to have been recognised in the light of lantern. 4. After registration of the case at P.S. Chhajlet, S.I. Brij Pal Singh (P.W. 6) along with other police personnel proceeded to Village Kuda Meerpur and after reaching there, inquest proceeding on the dead-body of Satyavrat was conducted, during which inquest report (Ext. Ka-9) and connected papers (Ext. Ka-14 to Ka-18) were prepared and thereafter, the dead-body was sent in sealed condition for post-mortem examination, which was conducted by Dr. Nitin Kumar Batra (P.W. 3) on 29.5.1993 at 2.30 p.m. According to the post-mortem report (Ext. Ka-3), following ante-mortem injuries were found on the person of the deceased. (a) Gun shot wound of entry : 2 cm x 1.5 cm, round on right side of neck, 8 cm below ear. Blackening, Tattooing and scorching is present in 5 cm x 4 cm. (paper torn) area. (b) Gun shot wound of exit : 1 cm x 0.5 cm, left side of neck, 6 cm below left side of neck. (c) Incised wound 2 x 1 cm x chest cavity deep. 9 cm medial to left nipple and 10 cm below external angle. In internal examination Larynx, Trachea and Bronchi were found penetrated and both carotid arteries were ruptured. Semi-digested food and gases in small intestine and faecal matter and gases in large intestine were found present. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. 5. Investigation was taken up by S.I. Braj Pal Singh (P.W. 6), who during investigation recorded the statements of witnesses, prepared site plan (Ext. Ka-10) and after making other necessary formalities regarding investigation/submitted charge-sheet (Ext. Ka-19) against the accused-respondents. 6. On the case being committed to the Court of Session for trial, charge under Sections 307, 302/34, I.P.C. against the accused Kamesh and Subhash, and Sections 302, 307/34, I.P.C. against the accused Dinesh and Viresh and separate charge under Section 120-B, I.P.C. against the accused Brijesh @ Vijai Pal, Yogesh, Munish and Narendra were framed. Since the accused-respondents pleaded not guilty and claimed to be tried, the prosecution in order to prove its case examined Manoj (P.W. 1), Smt. Santosh (P.W. 2), Dr. Nitin Kumar Batra (P.W. 3), Dr. Laxman Singh (P.W. 4), Dr. Since the accused-respondents pleaded not guilty and claimed to be tried, the prosecution in order to prove its case examined Manoj (P.W. 1), Smt. Santosh (P.W. 2), Dr. Nitin Kumar Batra (P.W. 3), Dr. Laxman Singh (P.W. 4), Dr. A. K. Gupta (P.W. 5) and S. I. Braj Pal Singh (P.W. 6). Dr. Laxman Singh had medically examined Smt. Santosh and Manoj Kumar on 29.5.1993 in District Hospital, Moradabad vide injury reports (Ext. Ka-4 and Ka-5) Sri Bijul Khan, scriber of the written report (Ext. Ka-1) was examined as Court Witness-I. 7. In their statements recorded under Section 313, Cr.P.C. the accused persons have denied their participation in the incident and they have stated that due to enmity, they have been falsely implicated in this case. However the accused persons did not lead any evidence in their defence. 8. After hearing parties’ Counsel and appraisal of the evidence, learned Trial Judge finding the accused persons not guilty of any offence, acquitted them of all the charges vide impugned judgement, which has been challenged by State of U.P. in this Appeal after seeking leave of the Court. It is worthwhile to mention that leave to appeal was sought against all the accused-respondents, but leave has been granted against accused-respondents No. 1 to 4 only vide order dated 15.9.2005. 9. We have heard Sri R.S. Maurya, learned A.G.A. for the State-appellant and Sri Raj Kumar Khanna, learned Counsel for the respondents-accused and gone through the impugned judgement as well as the entire evidence carefully. 10. It was vehemently contended by learned A.G.A. that convincing evidence in the form of statements of the eye-witnesses Manoj Kumar (P.W. 1) and Smt. Santosh (P.W.2) is available to establish the complicity of the accused-respondents in the incident of committing murder of Satyavrat and causing injuries to the aforesaid eye-witnesses, but the learned Trial Judge on surmises and conjectures without sufficient reasons has acquitted the accused-respondents and since the findings recorded by the learned Trial Judge are perverse and against the evidence, hence impugned judgment is liable to be set-aside and the accused-respondents should be convicted of the charges framed against them. It was also submitted by learned A.G.A. that this Court is quite competent to re-appreciate the evidence. 11. It was also submitted by learned A.G.A. that this Court is quite competent to re-appreciate the evidence. 11. On the contrary Sri Raj Kumar Khanna, learned Counsel appearing for the respondents-accused submitted that in appeal against acquittal scope for interference by the appellate Court is not as wide as in the appeal against conviction and even if two views are possible, then the view, which is favourable to the accused has to be accepted by the appellate Court. In this regard, it was also submitted by learned Counsel for the accused-respondents that interference by the appellate Court in the judgment of acquittal is possible only if the findings recorded by the Trial Judge are either perverse or against the evidence. It was further submitted by Shri Khanna that very cogent reasons have been given by the learned Trial Judge while recording the findings of acquittal in favour of the accused and hence, this Court will not be justified in making interference in the impugned judgment. Various other arguments on merit were also made by the learned Counsel for the accused-respondents. 12. Having heard the learned Counsel for the parties and after going through the impugned judgment as well as the oral and documentary evidence on record carefully, we entirely agree with the aforesaid submissions made by the learned Counsel for the accused-respondents. Although we agree with the learned A.G.A. that this Court is competent to re-appreciate the evidence notwithstanding that this is appeal against acquittal, but it is also settled principle of law that in the appeal against acquittal, the appellate Court can reverse the findings of Trial Court only if the findings are either perverse or against the evidence. It will be useful to reproduce the following observations made by Hon’ble Apex Court in the case of Harijana Thimpala and others v. Public Prosecutors, High Court of A.P. Hyderabad, 2002 S.C.C. (Cri) 1370 in para 11 of the judgment : “In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the Court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of the accused. At the same time, the Court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the Court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the Court has to appreciate, analyse and assess the evidence place before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case”. The following observations made by Hon’ble Apex Court in para 8 of the case of Kalyan and others v. State of U.P., 2002 SCC (Cri) 78 are also relevant : “The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, the principle of presumption of innocence of the accused persons is also equally well settled. Normally the views of the trial Court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial Court is supposed to have watched the demeanour and conduct of the witnesses and is in a better position to appreciate their testimony. Normally the views of the trial Court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial Court is supposed to have watched the demeanour and conduct of the witnesses and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial Court.” Keeping in view, the aforesaid observations made by Hon’ble Apex Court, let us now see whether there is any scope for interference in the impugned judgment. 13. According to the First Information Report which was lodged by the injured Manoj (P.W.1) at P.S. Chhajlet, the case of the prosecution is that murder of his father Satyavrat was committed by causing injuries by fire arms. Specific case of prosecution is that Satyavrat along with his son Manoj and one Kanta Prasad was going to his house, from Baithak and when they reached near the door of the house, the accused Dinesh, Viresh, Kamesh and their maternal brother Acharya having fire arms came from behind and at about 9.00 p.m. on 28.5.1993, Dinesh fired on Satyavrat and immediately thereafter Viresh also fired on him due to which he sustained injuries and died on the spot. As such, from the averments made in the FIR, it is evident that only fire arms are said to have been used in the commission of murder of Satyavrat, but this story of prosecution does not find corroboration from the medical evidence, because at the time of post-mortem examination on the person of deceased Satyavrat one incised wound was also found as is evident from the post-mortem report (Ext. Ka-3). There is nothing in the FIR to show that any sharp edged weapon was used in commission of the murder of Satyavrat. That being so, there is serious lacuna in the story as mentioned in the FIR and this serious infirmity shows that the incident had occurred in some other manner and the witnesses Manoj and Smt. Santosh are suppressing real incident. Although the witness Manoj also had sustained firearm injury, as is evident from the injury report Ext. Ka-5, but his testimony does not inspire confidence because this witness failed to mention very vital fact in the FIR. Although the witness Manoj also had sustained firearm injury, as is evident from the injury report Ext. Ka-5, but his testimony does not inspire confidence because this witness failed to mention very vital fact in the FIR. Use of sharp edged weapon in the alleged incident was very vital fact which has not been mentioned in the FIR and no satisfactory explanation for omission of this vital fact in the FIR has been furnished by this witness. Although the witness Manoj has stated in Trial Court in his statement that the accused Dinesh was having knife also and he had given knife blow to Satyavrat after making fire, but this vital fact has not been mentioned in the FIR. Although the presence of this witness cannot be doubted being the injured, but merely on this ground his testimony cannot be taken to be gospel truth. Therefore, the learned Trial Court has not committed any illegality in not placing reliance on the testimony of the witnesses Manoj and Smt. Santosh. 14. Smt. Santosh (P.W. 2) has stated in her statement in trial Court that fire was made on her by Acharya and she also sustained fire arm injury but this statement of Smt. Santosh also does not find corroboration from the medical report, because in the injury report (Ext. Ka-4) one lacerated wound 5 cm x .5 cm x .5 cm. deep on the right forearm was found. Dr. Laxman Singh (P.W.4), who examined Smt. Santosh on 29.5.1993 in District Hospital (Moradabad) has stated in his statement that injuries of Smt. Santosh are neither possible to be caused by fire arm nor by pellets. That being so, there is material inconsistency in the testimony of Smt. Santosh and her medical report. This fact also shows that incident did not occur in the manner as mentioned in the FIR and alleged by the witnesses. On this ground, the testimony of Smt. Santosh has also been rightly disbelieved by the learned Trial Judge. 15. The First Information Report of this case does not have any corroborative value, because from the record it transpires that the said report was prepared after consultation with the Police of P.S. Chhajlet, as is evident from the statement of Baijul Khan, who was examined on 9.4.2002 as Court witness No. 1 in Trial Court. 15. The First Information Report of this case does not have any corroborative value, because from the record it transpires that the said report was prepared after consultation with the Police of P.S. Chhajlet, as is evident from the statement of Baijul Khan, who was examined on 9.4.2002 as Court witness No. 1 in Trial Court. It is specifically stated by this witness that he had scribed the written report on the dictation of Darogaji at about 10.00 a.m. There is no reason to disbelieve the testimony of this witness and from his testimony this fact is borne out that the FIR was not only prepared with the consultation of the Police of P.S. Chhajlet but it is ante timed also, because the FIR is shown to have been lodged at 5.30 a.m. On 29.5.1993, whereas the written report (Ext. Ka-1) on the basis of which the FIR was prepared was scribed by CW-1 Baijul Khan at about 10 a.m. on that date. As such, the FIR has no corroborative value in this case. 16. The motive as alleged in FIR is said to be the dispute on the matter of cutting keeker tree situated on the plot of complainant. In this regard, it is mentioned in the FIR that some days ago there was altercation between Satyavrat and the accused Dinesh, Viresh and Kamesh on the matter of cutting the keeker tree situated at the plot of complainant. In his examination-in-chief, the complainant Manoj (PW 1) has stated that accused persons wanted to cut the keeker tree, which was situated in his abadi plot and an altercation had taken place over this matter between his father Satyavrat and the accused persons. In cross-examination, it is stated by this witness that the incident of altercation over the keeker tree had taken place about three months prior to the incident. This case is falsified by Smt. Santosh, the wife of deceased Satyavrat, who has stated in her statement that her husband had cut the keeker tree about six months prior to the incident of his murder. This case is falsified by Smt. Santosh, the wife of deceased Satyavrat, who has stated in her statement that her husband had cut the keeker tree about six months prior to the incident of his murder. As such, the story of altercation having been taken place between the deceased and accused persons about three months prior to the incident over the dispute of cutting keeker tree becomes false and on this ground it can very well be said that imaginary motive has been concocted with a view to falsely implicate the accused persons in this case. On this point, it was submitted by learned Counsel for the accused respondents that there was motive for the complainant Manoj to falsely implicate the accused persons in this case, because about a month prior to the murder of Satyavrat, the accused Dinesh had lodged an FIR against the complainant Manoj, witness Kanta Prasad, Sunil, Satbir and Narinder regarding theft of motor, in which Shiv Charan and Sri Ram were made witnesses and due to that FIR, the accused persons have been falsely roped in this case by the complainant. It was also submitted by learned Counsel for the accused-respondents that accused Yogesh is the son of Salik Ram and accused Brijesh is the son of Shiv Charan and the accused Dinesh, Viresh and Kamesh are real brothers and they all along with other accused have been falsely implicated in this case due to enmity. The complainant Manoj has admitted in this statement that the accused Dinesh has lodged an FIR against him and the witness Kanta Prasad, Sunil, Satbir and Narendra regarding theft of motor. Therefore, the possibility of falsely implicating the accused persons due to the enmity of that FIR cannot be ruled out. 17. The complainant Manoj in his statement has stated that he did not tell the names of accused persons to anybody at that time and in his presence his mother, the witness Kanta and Sunil also did not tell the names of accused persons to anybody. It is also stated by this witness that he did not tell the names of assailants to the driver of the tractor in which he had gone to lodge the FIR. It is also stated by this witness that he did not tell the names of assailants to the driver of the tractor in which he had gone to lodge the FIR. Drawing our attention towards these statements of the complainant, it was submitted by learned Counsel for the accused-respondent; that, the complainant and witnesses had not recognized the assailants due to dark night and it was for this reason that the complainant could not tell the name of assailants to anybody before lodging the FIR and after reaching at Police Station Chhajlet, he lodged the false FIR after consultation with the Police. This submission made by learned Counsel for the respondents-accused is not without force. Had the complainant and the witnesses recognized the assailants at the time of incident, then the complainant would have told the name of assailants to the persons who had reached the place of occurrence after the incident, but as stated by the complainant Manoj in his statement, he did not tell the names of accused persons to anybody, which is indicative of the fact that the incident had occurred in some other manner and due to dark night the assailants could not be recognized by the complainant and the witnesses. 18. After discussing the evidence led by the prosecution, the learned Trial Judge has recorded the following finding in para 28 of the impugned judgment. “From the above discussion, I am of the view that the prosecution story, as narrated, seems to be doubtful and murder of the deceased Satyavrat did not take place in such a manner as alleged by the prosecution. The prosecution could not prove the case against the accused beyond all reasonable doubt and implication of the accused may be on account of enmity as alleged by the complainant himself. The murder of the deceased took place in any other manner and assailants could not be identified in the night. The evidence adduced by the prosecution is not sufficient to bring home the guilt against the accused and they deserve to be acquitted for the charges levelled against them. We fully approve the aforesaid finding of the learned Trial Judge. 19. For the reasons mentioned in the impugned judgment and having regard to the aforesaid discussion, we are of the considered view that the findings of acquittal recorded by learned Trial Judge are neither perverse nor against the evidence. We fully approve the aforesaid finding of the learned Trial Judge. 19. For the reasons mentioned in the impugned judgment and having regard to the aforesaid discussion, we are of the considered view that the findings of acquittal recorded by learned Trial Judge are neither perverse nor against the evidence. The learned Trial Judge has properly appreciated the evidence and the view taken by him is quite reasonable. Therefore, even if any other view on the evidence is possible, this Court will not be justified in making interference in the impugned judgment. 20. In the result, this Govt. Appeal is hereby dismissed. The personal bonds of the respondents-accused and surety bonds of the sureties are hereby cancelled and the sureties are discharged. Office to return the Trial Court record along with a copy of this judgement expeditiously. ————