JUDGMENT 1. - The instant appeal has been filed by the State of Rajasthan challenging the validity of the judgment dated 02.04.1987 passed by the Additional Sessions Judge, Bali, Rajasthan in Sessions Case No. 13/1985, whereby the learned trial court acquitted both the respondents from the charges levelled against them for commission of offence under Section 302, 302/34 and 394 IPC. 2. As per the brief facts of the case, FIR (Ex.P.2A) was filed by Amra S/o Rama, father of the deceased Kala, in which it was reported that his son Kala was working as labour on Kakradi - Aaradva Road and on Saturday, 0 03.08.1985, went to Beda for recovery of his labour dues along with 50-60 other labours, but till night he did not return and upon enquiry from Kuki and Sabil, it was told by them that they came early while Kala was at Beda. Thereafter the complainant waited till morning " and on the next day on 04.08.1985, he sent his maternal grandson (dohita) to Kesa Garasiya, Berdi 15 and made his all efforts to search out his son Kala. Ultimately when the complainant Amra, father of the deceased, reached village Beda to search his son, it came to his knowledge through rumors that a human body is lying on the way at village Beda. The complainant went on the spot and found that the said body was of his son Kala, then he lodged the complaint on 05.08.1985 at 7'olice Station Nana, District Pali at about 1.30 p.m. In the FIR, the above facts were stated, so also it was specifically mentioned that there was previous animosity with Tariya, Keeka, Pitram, Bakhtaram, Puriya, Kasna and son of Kasna and they might have killed his son, therefore, action may be taken. Upon the aforesaid information, the S.H.Q. Police Station Nana, District Pali registered FIR No. 70/1985 and commenced investigation. 3. In the investigation, the body of deceased Kala was taken to the hospital from village Beda for post mortem and upon examination by Dr. Tulsi Ram Gahlot (P.W.11), it was found that there was injury upon the head of the deceased Kala and deceased Kala died due to head injury. 3. In the investigation, the body of deceased Kala was taken to the hospital from village Beda for post mortem and upon examination by Dr. Tulsi Ram Gahlot (P.W.11), it was found that there was injury upon the head of the deceased Kala and deceased Kala died due to head injury. The police after investigation arrested the respondents on the basis of evidence of extra judicial confession before P.W.8 Heera and important eye-witness P.W.5 Andaa and P.W.15 Chuna and after investigation, filed challan under Section 302, 302 read with Section 34 IPC and 394 IPC in the court of Civil Judge cum Additional Chief Judicial Magistrate, Bali, from where the case was committed to the court of Additional Sessions Judge, Bali for trial. 4. The trial court after framing charge against both the respondents under Section 302, 302 read with Section 34 IPC and 394 IPC, proceeded to conduct the trial. During trial, from the side of prosecution, statements of 22 witnesses were recorded and thereafter further statements of respondents under Section 313 Cr.PC. were recorded, in which they denied all the charges levelled against them. Thereafter from the defence side statement of D.W.1 Chamnaram was recorded by the trial court. 5. After completion of the trial, final arguments were heard and vide impugned judgment dated 02.04.1987, learned Additional Sessions Judge, Bali acquitted the respondents from the charges levelled against them. 6. Learned Public Prosecutor while challenging the finding of the judgment vehemently argued that the learned trial court has committed a grave error while acquitting the respondents on the basis of wrong findings because the prosecution has proved its case beyond reasonable doubt by leading cogent and reliable evidence. As per the. argument of the learned Public Prosecutor, upon perusal of the statement of PW.5 Andaa, it emerges that this eye-witness has categorically stated in his statement that for recovery of labour dues, he went with the deceased Kala at village Beda, when they were sitting at a tea-stall, the respondent Kusa came there and thereafter they all went to the liquor shop where quarrel took place and at that time, respondent Naga inflicted injury by lathi upon the head of the deceased Kala and Kusa pushed him and due to pushing forcefully, the deceased fell down and thereafter he died on the spot. The learned trial court has erroneously disbelieved the testimony of this witness because his evidence is corroborated by the medical evidence, therefore, the statement of PW.5 Andaa should have been believed by the trial court but the trial court committed an error while not relying upon the testimony of PW.5 Andaa in right perspective, therefore, the finding of the learned trial court with regard to disbelieving the testimony of PW.5 is totally erroneous, more so when the prosecution has proved its case beyond reasonable doubt by leading trustworthy and direct evidence of PW.5 Andaa. In this view of the matter, learned Public Prosecutor submitted that the judgment under challenge deserves to be quashed and the respondents are liable to be punished on the testimony of the sole eye-witness P.W.5 Andaa. Learned Public Prosecutor is solely relying upon the testimony of P.W.5 Andaa alleged eye-witness, which is said to be corroborated by the medical evidence as per the statement of P.W.11 Dr. Tulsi Ram Gahlot. As per the statement of Dr. Tulsi Ram Gahlot, he conducted the post mortem of the body of the deceased Kala and prepared Ex.P.9 post mortem report and as per his opinion, the cause of death was shock due to excessive hemorrhage and fracture of skull and head injury. Learned Public Prosecutor has argued that the expert evidence of Dr. Tulsi Ram Gahlot (PW.11) as also supporting the testimony of P.W5 Andaa who has deposed in his statement that the injuries were inflicted upon the head of the deceased by lathi by the respondent Naga and at that time, respondent Kusa pushed the deceased Kala due to which he fell down and died on the spot, therefore, the judgment impugned deserves to be quashed and the respondents are liable to be punished for committing offence for which they were charged. 7. Per contra, learned counsel appearing on behalf of the respondents vehemently argued that finding of learned trial court does not require any interference because it is based upon sound appreciation of the evidence after due application of mind. 7. Per contra, learned counsel appearing on behalf of the respondents vehemently argued that finding of learned trial court does not require any interference because it is based upon sound appreciation of the evidence after due application of mind. Upon considering the entire evidence, the learned trial court found that testimony of RW.5 Andaa is not trustworthy because of his own conduct because as per the statement of PW.5 Andaa, after seeing the incident, he went to his own house, then in the night he went to his uncle's house at village Goriay but did not inform about the incident to anybody, not even to his own family members and father of the deceased Kala, therefore, learned trial court while taking into consideration the whole incident and the statement of PW.5 Andaa, came to the conclusion that due to conduct of eye-witness P.W. Andaa, it is not safe to convict the respondents on the basis of testimony of P.W.5 Andaa. Further it is pointed out by learned counsel appearing on behalf of the respondents that though the prosecution has produced two eye-witnesses P.W5 Andaa and PW.15 Chuna, but PW.15 Chuna has turned hostile and has not supported the prosecution case. This witness P.W.15 Chuna has denied in his statement that he went to take liquor at the liquor shop and saw Andaa and Kala there. In this view of the matter, if the testimony of P.W5 Andaa is not corroborated by any other independent witness and if the story narrated by P.W5 Andaa is not found to be trustworthy, then there was no ground left with the learned trial court except to acquit the respondents because if two views are possible, then benefit of doubt is required to be given to the accused as per the law laid down by the Hon'ble Apex Court. 8. In the statement of P.W.5 Andaa, there is specific allegation against Naga, but against respondent Kusa, only P.W.5 Andaa stated that quarrel took place between Kusa and Kala on giving evidence, upon which Kusa pushed him and not inflicted any injury, therefore, for respondent Kusa also, there is no trustworthy or reliable evidence on record, therefore, there was no occasion left with the learned trial court to convict respondent Kusa. In this view of the matter, it is vehemently argued that the learned trial court has rightly discredited the testimony of so-called eye-witness Andaa (PW.5) on the ground that his statement was recorded 6 days after the incident when the FIR was registered. In this view of the matter, the finding of the learned trial court does not require any Interference more so the learned trial court has rightly disbelieved the evidence of extra judicial confession as well as the so-called direct evidence which creates volumes of doubt. 9. Learned counsel of the respondents pointed out come more important fact that the complainant, father of the deceased Kala, specifically alleged in the FIR that there was enmity of deceased Kala with Tariya, Keeka, Pitram, Bakhtaram, Puriya, Kasna and the son of Kasna and they might have killed his on, but no investigation was conducted by the police with regard to such allegation, therefore, this fact itself is sufficient to disbelieve the prosecution story. 10. Learned counsel for the respondents has invited our attention towards the recent judgment of the Hon'ble Supreme Court in the case of Sangappa & Ors. v. State of Karnataka, reported in 2010 AIR SCW 1653 , in which the Hon'ble Apex Court has held that in an appeal against acquittal, the High Court has full power to re-appreciate and re-assess the entire evidence upon which the order of acquittal was founded and then to come to its own conclusion, but to come to its own conclusion, the evidence is required to be scrutinised in proper manner and if two views are possible, then benefit of doubt is required to be given to the accused. Learned counsel for the respondents has also relied upon the judgment rendered by the Hon'ble Apex Court in the case of Nepal Singh v. State of Haryana, reported in (2010) 1 SCC (Cri.) 244 : (2009) 12 SCC 351 and prayed that this appeal may be dismissed. 11. We have considered the rival submissions made by both the parties and perused the impugned judgment. Admittedly in this case, the deceased Kala left his house on 03.08.1985 and he was not found till filing of the FIR on 05.08.1985. 11. We have considered the rival submissions made by both the parties and perused the impugned judgment. Admittedly in this case, the deceased Kala left his house on 03.08.1985 and he was not found till filing of the FIR on 05.08.1985. Amra, father of the deceased Kala lodged the FIR Ex.P.2A in which it was specifically mentioned that there was previous animosity with some persons, namely, Tanya, Keeka, Pitram, Bakhtaram, Puriya; Kasna and the son of Kasna and as per his apprehension, they might have killed his son, whose body was later on found at the boundary of village Beda, meaning thereby no enmity between the respondents and the deceased was shown in the FIR, more so enmity was shown with other persons, meaning thereby there is no evidence on record with regard to motive or intention to kill the deceased Kala by the respondents. Further it is one of the important facts of the case that two witnesses were named as eye witnesses, namely, P.W.5 Andaa and PW.15 Chuna, but P.W.15 Chuna, was declared hostile by the trial court, whereas statement of PW.5 Andaa was recorded in support of the prosecution. We have perused the statement of PW.5 Andaa. Upon perusal of the statement of PW.5 Andaa, in our opinion, the learned trial court has rightly discredited the testimony of this witness because his conduct itself shows that he is not an eye-witness. On perusal of his statement, it emerges that after seeing the incident he went to his house and did not make report to anybody and thereafter he went to the house of his uncle at village Goriya and his statement was recorded after delay of 6 days, meaning thereby if P.W.5 Andaa is claiming himself to be an eye-witness, then he ought to have given information about the incident to the family members of the deceased or any other person, but it is nowhere stated by him in his statement that he ever gave information regarding the incident to any person before investigation was made by the Police. Admittedly, if he was an eye-witness of the incident, then he was to narrate the incident to the father of the deceased Kala, but he even left his village and went to the Goriya which is 3-4 kms. away from the village of the deceased Kala. Admittedly, if he was an eye-witness of the incident, then he was to narrate the incident to the father of the deceased Kala, but he even left his village and went to the Goriya which is 3-4 kms. away from the village of the deceased Kala. It is also one of the important facts that P.W.5 Andaa was examined by the police after 6 days of the incident and there is no explanation on the record from the side of the prosecution to show as to why the police examined this witness after delay of 6 days. In this view of the matter, the learned trial Court has rightly arrived at the finding that testimony of PW.5 Andaa, who is said to be eye-witness, is not trustworthy or having any substance and that the respondents have not committed any offence. In our opinion, no error has been committed by the trial court while coming to the conclusion that conviction cannot be based upon such type of evidence. 12. With regard to other ground of extra judicial confession, we are unable to accept any ground that there is evidence on record with regard to extra judicial confession because P.W.8 Heera is real brother-in-law of the deceased Kala and according to this witness,, 12 months before (sic) the incident, when he was going to market at Village Kankaradi, Naga met him on the way and told him that some altercation took place with Kala who was in drunken condition and confessed the incident. In our opinion, the learned trial court has rightly disbelieved the testimony of this witness because admittedly there was no occasion left with the respondents to make any confession before the brother-in-law of the deceased, therefore, the learned trial court has rightly held that the testimony of this witness is totally unreliable. It is also one of the important aspects of the matter that P.W.8 Heera has not made any statement before the police about the alleged confession and after some time he admitted that he went to the house of his father-in-law Amra and stated this fact before him, meaning thereby the learned trial court has rightly discredited the statement of P.W.8 Heera, the witness before whom the alleged extra judicial confession is said to be made. 13. We have scanned the entire evidence on record, so also the finding of the learned trial court. 13. We have scanned the entire evidence on record, so also the finding of the learned trial court. The ground of challenge in this appeal taken by the State Government is that the learned trial court has not rightly appreciated the evidence, so also the finding is not tenable because there is direct evidence of P.W.5 Andaa. In our opinion, no conviction can be made on presumption or on the basis of statement which is apparently not trustworthy. On the one hand, complainant Amra, father of the deceased, himself is not levelling any allegation against the respondents in the FIR, more so levelled allegation against other persons with regard to previous animosity and on the other hand, on the basis of testimony of so-called eye-witness, the prosecution is trying to make out the case, but upon re-appreciation of the evidence, we find that the learned trial court has not committed any error while giving the finding that the prosecution has not proved its case beyond reasonable doubt, so also it has not produced any reliable and trustworthy evidence upon which conclusion can be arrived at that the respondents have committed any offence for which they can be convicted. 14. We have also perused the judgments cited by the learned counsel for the respondents. In the case of Sangappa & Ors. v. State of Karnataka (supra), the Hon'ble Apex Court has held that parameters for deciding appeal 5 against acquittal are altogether different and at the time of deciding the appeal against acquittal, if two views are possible, then benefit of doubt must be given to the accused. Para 9 of the said judgment is as follows:- "9. We must express our reservation for the manner in which the High Court disposed of the appeal under Section 378(1) and (3) of Code of Criminal Procedure. It is true that in an appeal from acquittal the High Court has full power to re-appreciate and re-assess the entire evidence upon which the order of acquittal was founded and then to come to its own conclusion. There is no limitation placed on that power of the High Court. It is true that in an appeal from acquittal the High Court has full power to re-appreciate and re-assess the entire evidence upon which the order of acquittal was founded and then to come to its own conclusion. There is no limitation placed on that power of the High Court. The Code makes no difference in the power of the appellate court, between appeal filed by the State or by other person but the appellate court would not be justified merely because it feels that a different view should be taken for reasons which are not so strong. This Court repeatedly held that the High Court in exercising the power conferred by the Code and before reaching its conclusion upon facts, it shall give always proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that they have been acquitted at trial; (3) the right of the accused to the benefit of any doubt." 15. In the case of Nepal Singh v. State of Haryana (supra), the Hon'ble Supreme Court has held in para 42 as under- "42. From the above decisions, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out (1) An appellate court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons, 'good and sufficient grounds, 'very strong circumstances, 'distorted conclusions', 'glaring mistakes, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 16. In this view of the matter, on re-appreciation and re-assessment of the evidence and taking into consideration the adjudication made by the Hon'ble Apex Court, we are of the view that upon applying the above principles laid down by the Hon'ble Apex Court to the evidence available on record, no error has been committed by the learned trial court while acquitting the respondents from the charges levelled against them, therefore, no interference is required in the judgment impugned and this appeal deserves to be dismissed. 17. Accordingly, this appeal filed by the State of Rajasthan is dismissed.Appeal Dismissed. *******