Judgment :- A.R. Joshi, J. 1. Heard rival submissions at length on this appeal preferred by the State of Maharashtra against acquittal of respondent/original accused. Perused the evidence recorded before the learned Additional Sessions Judge, Nagpur. Also perused the reasoning given by the learned Additional Sessions Judge while deciding Sessions Case No. 127 of 1993. 2. The impugned judgment and order acquitting the respondent/original accused was passed by 4th Additional Sessions Judge, Nagpur on 10th March 1997. Respondent/accused was acquitted of the offence punishable under Section 302 of the Indian Penal Code. Being aggrieved by the said judgment and order of acquittal, the State of Maharashtra preferred the appeal which is under consideration. 3. Initially, another lawyer was representing respondent/accused. However, when the matter was taken up for final hearing before us, respondent was not represented. As such, ultimately, learned Advocate Mr A. S. Mardikar was appointed to represent the respondent in the present appeal. 4. The facts of the present matter can be narrated as under. 5. Respondent/accused is resident of Indora Slum Area, Nagpur and deceased Nalanda was residing in the same locality. Allegedly, deceased Nalanda was second wife of respondent/accused. However, he had denied such relation. According to the case of prosecution and also according to P. W. 6 Kusum Shambharkar, mother of deceased Nalanda, respondent/accused was married with deceased Nalanda, however, was not treating her properly. There used to be frequent quarrels. According to P.W. 6 Kusum, about five months prior to the incident leading to the death of Nalanda, she was severally beaten by accused and was admitted in Mayo Hospital and after discharge, she was residing with her mother and a report was lodged with Police Station, wadi. As such, apparently, relations between accused and Nalanda were strained and accused was treating her with cruelty. The fateful incident occurred at about 09.00 am on 26th December 1992 in front of Jaripatka Police Out-post. At that time, accused assaulted Nalanda by means of knife and spear-head. He inflicted severe injuries on her person, apparently causing instantaneous death on the spot. Said assault was witnessed by various persons of the locality including P.W. 1 Sukhdeo and P.W. 2 Suryakant. Intimation was given to the local police out-post and police personnel reached the spot including P.W. 3 Kailash, police constable. Said P.W. 3 Kailash saw the accused on the spot. Said assault was witnessed by various persons of the locality including P.W. 1 Sukhdeo and P.W. 2 Suryakant. Intimation was given to the local police out-post and police personnel reached the spot including P.W. 3 Kailash, police constable. Said P.W. 3 Kailash saw the accused on the spot. However, he did not dare to apprehend him as threats of dire consequences were given by the accused. P.W. 3 Kailash went back to Jaripatka Police Station and brought other police party including PSI Gotmare (P.W. 4). PSI Gotmare, sensing the seriousness of the situation as the accused was then armed with weapons and was present on the spot when the victim Nalanda was lying on the ground in a pool of blood, directed the accused to surrender to the police and after pointing revolver to the accused, he was over-powered and was taken into custody by the police. The weapons of assault i.e. spear-head and knife which were thrown on ground by the accused were taken charge of. 6. First Information Report was lodged by PSI Gotmare (P.W. 4) immediately at 10.00 am on the same day at Jaripatka Police Station, Nagpur. Offence punishable under Section 302 of the Indian Penal Code was registered against the accused. During investigation, statements of various witnesses were recorded. Then injured Nalanda was removed to hospital, however, was declared dead due to severe injuries. Seized articles and clothes of victim Nalande and also those of the accused were sent for chemical analysis. After obtaining relevant report such as Chemical Analyser’s Report, Post-mortem Report and Injury Certificate regarding injury sustained by the accused on his right palm, investigation was concluded and case was committed to the Court of Sessions after filing of the chargesheet. 7. During the trial before learned Additional Sessions Judge, Nagpur, eleven witnesses were examined by the prosecution including two eye witnesses P.W. 1 Sukhdeo and P.W. 2 Suryakant and other relevant witnesses who had seen the accused on the spot with the weapons. Finding the evidence of eye witnesses untrustworthy, learned Additional Sessions Judge disbelieved the case of prosecution as to the accused being the author of the incident and murder of Nalanda and acquitted him by the judgment and order which is impugned in the present appeal. 8. During the arguments, learned Additional Public Prosecutor for the State took us through the detailed substantive evidence of eye witnesses (P.Ws. 8. During the arguments, learned Additional Public Prosecutor for the State took us through the detailed substantive evidence of eye witnesses (P.Ws. 1 and 2) and also substantive evidence of P.W. 3 Kailash, P.W. 4 PSI Gotmare. Learned APP also placed reliance on substantive evidence of P. W. 6 Kusum, mother of victim Nalanda. By pointing out the said substantive evidence of the witnesses, it is submitted on behalf of the prosecution that the factum as to the presence of accused on the spot where the victim was lying on the ground in a pool of blood and factum as to the accused assaulting the victim by means of weapons has been sufficiently established beyond reasonable doubt. While arguing this, it is further submitted on behalf of the State that though there are certain omissions brought on record from the substantive evidence of P.W. 1 and P.W. 2 to the effect that even after victim Nalanda fell on the ground after initial assault on her by means of knife and spear-head, accused continued his assault on her and as to P.W. 3 Kailash, Police Constable asking the accused to throw away the spear, the main thread of the prosecution case as to P.W. 1 and P. W. 2 witnessing the initial assault on the victim at the hands of the accused and P. W. 3 Kailash seeing the accused on the spot and then rushing towards Jaripatka Police Station for getting more police help, are the circumstances fully established. 9. It is further argued on behalf of the State that inspite of certain omissions which are insignificant and not going to the root of the matter, the main case of the prosecution as to the involvement of the accused in the assault on Nalanda and his apprehension on the spot by the police officer P. W. 4 PSI Gotmare is sufficient enough to bring home the guilt of the accused. 10. Counter to the above arguments, learned Advocate Mr Mardikar for the respondent/accused submitted that if there are two views possible on the given set of circumstances, then the view taken by the trial Court in favour of the accused cannot be substituted so as to convert the order of acquittal into an order of conviction when apparently there is no perversity in the finding of the trial Court. On this aspect, following authorities are cited before us : (1) 1984 (Supp) SCC 624 State of Karnataka v. Venkataravanappa and ors (2) (2007) 4 SCC 415 Chandrappa and ors v. State of Karnataka After going through the substantive evidence of the eye witnesses (P.W. 1 Sukhdeo and P.W. 2 Suryakant) and considering the fact that their testimony is not shaken on the main thread of the prosecution case i. e. they witnessing the accused assaulting the victim Nalanda, there cannot be two views possible, only one view is possible indicating the involvement of accused in the offence as an assailant. This is more so when he was immediately arrested on the spot by P.W. 4 PSI Gotmare. 11. Another point argued on behalf of the respondent is that there is no explanation given by the prosecution as to how the accused sustained injury on his right palm and in that event, the inference is required to be drawn that it was an injury caused in a fight when accused tried to save himself from the assault. On this aspect, following authorities are cited before us: (1) AIR 1976 SC 2263 Lakshmi Singh & ors v. State of Bihar. (2) 1987 Cri. L.J. 1058 Seriyal Udayar v. State of Tamil Nadu (3) 1984 Cri. L.J. 1164 Rajendra Singh v. State of U. P. On this argument, it is worth-while to mention, what is the injury caused to the accused and as narrated by substantive evidence of P.W. 9 Dr Prabhakar Barapatre. The evidence of P.W. 9 Dr Barapatre reads as under : “I had examined the accused. He was having lacerated wound on right palm 2 cm into 1/4th cm. It was skin deep. The accused was having only one injury and accordingly I issued one injury certificate which bears my signature which I identify, it is marked exh. 66. I identify the accused who is now present in the court hall before me.” 12. During cross-examination, Dr Barapatre opined, “whenever there is an injury to the right palm it might have been sustained while defending oneself”. The witness further answered, “Such injuries could be caused while defending or may be caused even otherwise”. This material on record is to be viewed in juxta position of the defence of the accused. While answering question number 44 during examination of accused under Section 313 Cr. The witness further answered, “Such injuries could be caused while defending or may be caused even otherwise”. This material on record is to be viewed in juxta position of the defence of the accused. While answering question number 44 during examination of accused under Section 313 Cr. P. C., he answered as follows : “Que.44 : Have you got anything to say ? Ans. : I & Nalanda were speaking to each other at the relevant time Chandrabhan Wahane came there & assaulted me with a knife. While defending I sustained injury to my right palm. I ran towards my house. Police had arrested me after I learnt about Nalanda’s murder.” 13. Even on preponderance of probability, this defence of the accused cannot be accepted. Moreso, considering the conduct of the accused himself as according to him, there was murderous attack by one Wahane on him and after receiving injury to right palm, he ran towards his house, apparently without bothering as to what happened to Nalanda. We are not oblivious of the fact that the burden of proving a particular circumstance leading to his innocence is not of that standard on the accused than it is on the prosecution to prove the guilt of the accused. Still, on preponderance of probabilities, such defence of the accused cannot be accepted even to give him benefit of doubt. In that view of the matter, it must be said that learned Additional Sessions Judge had erred in giving such benefit to the accused and holding that the prosecution has failed to establish its case against the accused for the offence of murder. 14. Another argument is advanced on behalf of the respondent that in view of the material contradictions, there cannot be any interference in the judgment and order of acquittal when there is no perversity or illegality in the said judgment. In support of this submission, following authority is cited before us : State of Tamil Nadu v. Ammasi alias William 1992 Supp (3) SCC 75 In the said matter, apparently there were material contradictions between what is mentioned in the First Information Report and the evidence given by the witnesses in regard to the role played by respondent/accused in the attack on the deceased. In the present matter, the First Information Report is given by PSI Gotmare (P.W. 4) and apparently, there are no omissions or contradictions vis-a-vis his substantive evidence with the contents of the FIR. 15. Moreover, the basic thread of the prosecution as to P.Ws. 1 and 2 witnessing the assault at the hands of the accused to the victim, there cannot be any material omission doubting the case of prosecution though suggested to that effect on behalf of the accused. In the result, this argument cannot sustain. 16. Lastly, it is argued on behalf of the respondent/accused that the incident is of the year 1992 and the accused was charged in November 1993 and was acquitted on 10th March 1997 and since the date of acquittal he is at liberty till date and in view of such circumstances, the judgment and order of acquittal may not be interfered with in the year 2010. Mainly, considering the substantive evidence of P.Ws. 1 to 6, it must be said that the learned Additional Sessions Judge had erred in appreciating the evidence of prosecution in its proper perspective and there is every need to interfere with such judgment and order of acquittal. This is moreso when it is also well established that unmerited acquittal also leads to the injustice and in an appropriate case, it is the duty of higher court to intervene and set right the things, though belatedly. 17. While parting with this appeal, it must be said that the homicidal death of victim Nalanda is established and the presence of accused on the spot with the weapon and the fact that he inflicted assault on the victim are the established circumstances leading us to reverse the judgment and order of acquittal. Consequently, the present appeal succeeds and the same is accordingly allowed by following order : ORDER (i) Criminal Appeal No. 243 of 1997 is allowed. Judgment and order dated 10th March 1997 in Sessions Case No. 127 of 1993 passed by 4th Additional Sessions Judge, Nagpur is quashed and set aside. Respondent/accused is held guilty of the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/-, in default, to suffer further rigorous imprisonment for six months. (ii). Respondent/accused is held guilty of the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/-, in default, to suffer further rigorous imprisonment for six months. (ii). Bail bonds of the respondent/accused stand cancelled and he is directed to surrender to his bail bonds to serve out the jail sentence. (iii). Set-off be given to respondent/accused for the period he was in jail. (iv). Fees payable to Mr A. S. Mardikar, Advocate (appointed) is quantified at Rs. 1800/-and shall be paid by the High Court Legal Services, Sub-committee at Nagpur. (v). Appeal stands disposed of accordingly.