JUDGMENT Hon’ble Vinod Prasad, J.—Both these connected appeals are directed against the same impugned judgment and order dated 4.9.1981 passed by IVth Additional Sessions Judge, Bareilly, rendered in S.T. No. 277 of 1979, State of U.P. v. Abdul Salam and others, under Sections 147/148/149/323/324/302 I.P.C. P.S. Bhojipura, District Bareilly and hence both were clubbed together and are being disposed of by this common order. 2. Former appeal, Government Appeal No. 330 of 1982, State v. Abdul Salam and others, under Section 378 Cr.P.C., is directed against acquittal of twenty five accused-respondents namely Abdul Salam @ Neta, Zamil Ahmad @ Katroo, Akil Ahmad, Abdul Salam son of Mohd. Yaqoob, Kalloo son of Abdul Bashir, Abdul Salam son of Kalloo, Zamil @ Bahra, Abdul Vakil @ Nanna, Amir Ahmad, Rafiq Ahmad, Zamil Ahmad, Chotey, Bilayati, Kalloo son of Abdul Zabbar, Noor Ahmad, Abdul Qayum, Abdul Malik, Abdul Qayum son of Abdul Aziz, Abdul Majid, Shafiq Ahmad, Taufeeq @ Faqira, Shafiq Ahmad @ Buddal son of Mohd. Ismail, Amir Ahmad son of Abdul Bashir, Mohd. Shabir and Abdul Khaliq of charges under Sections 302/149, 324/149, 323/149 I.P.C., whereas connected Criminal Appeal No. 2096 of 1981, Mohd. Sabir Ahmad and others v. State of U.P., under Section 374 (2) Cr.P.C., has been preferred by the three convicted accused Mohd. Sabir, Abdul Khaliq and Amir Ahmad against their conviction for offences under Section 147, 304 (II)/149 and 323 I.P.C. and imposed sentences of six months R.I. on the first count, three years R.I. on the second count and three months R.I. on the last count. 3. A priory, it is apt and pertinent to record that in Criminal Appeal No. 2096 of 1981, Mohd. Sabir Ahmad and others v. State of U.P., all the three convicted appellants therein, namely Mohd. Sabir, Abdul Khaliq and Amir Ahmad (accused-respondent Nos. 23 to 25) in State Appeal have died, therefore that Criminal Appeal No. 2096 of 1981, Mohd. Sabir and others v. State of U.P., by aforesaid accused-appellants against their conviction and State appeal against acquittal of these very accused respondents have become infructuous and are dismissed as such. 4. Sabir, Abdul Khaliq and Amir Ahmad (accused-respondent Nos. 23 to 25) in State Appeal have died, therefore that Criminal Appeal No. 2096 of 1981, Mohd. Sabir and others v. State of U.P., by aforesaid accused-appellants against their conviction and State appeal against acquittal of these very accused respondents have become infructuous and are dismissed as such. 4. Likewise, Government Appeal No. 330 of 1982, State v. Abdul Salam and others, also abates respecting accused-respondent No. 1 Abdul Salam @ Neta, No. 3 Akil Ahmad son of Usman Rahalwan, No. 5 Kalloo son of Abdul Bashir, No. 8 Abdul Vakil @ Nanna, No. 9 Amir Ahmad son of Mohd. Usman, No. 11 Zamil Ahmad son of Habib Ahmad, No. 12 Chotey son of Abdul Sattar and No. 15 Noor Ahmad son of Ali Umar, No. 23 Amir Ahmad, No. 24 Mohd. Sabir, No. 25 Abdul Khaliq, as all these accused respondents are dead. This has now left us to consider only the State appeal against acquittal of accused-respondent No. 2 Zamil Ahmad @ Katroo, No. 4 Abdul Salam, No. 6 Abdul Salam son of Kalloo, No. 7 Zamil @ Bahra son of Kalloo, No. 10 Rafiq Ahmad son of Habib Ahmad, No. 13 Bilayati son of Chotey, No. 14 Kalloo son of Abdul Zabbar, No. 16 Abdul Qayum son of Abdul Zabbar, No. 17 Abdul Malik, No. 18 Abdul Qayum, both sons of Abdul Aziz, No. 19 Abdul Majid son of Abdul Gaffar, No. 20 Shafiq Ahmad son of Abdul Bashir, No. 21 Taufeek @ Faqira son of Amir Ahmad and No. 22 Shafiq Ahmad @ Buddal son of Mohd. Ismail, all of them residents of incident village Ghora Tanda P.S. Bhojipura, District Bareilly. 5. Prosecution story narrated during investigation and unfolded by it’s witnesses in the trial are that all the twenty five accused had a common genealogy of Walin family of village Ghora Tanda, P.S. Bhojipura, District Bareilly. Informant Mallu @ Abdul Hakim PW1, his cousin brothers Abdul Malik (deceased), Hazoor Ahmad P.W.2 were their co-villagers being residents of the same village and both the rival factions were very well known to each other. Informant Mallu @ Abdul Hakim PW1, his cousin brothers Abdul Malik (deceased), Hazoor Ahmad P.W.2 were their co-villagers being residents of the same village and both the rival factions were very well known to each other. Background reasons for perpetrating present murder was embedded in three different preceding incidents, firstly that five months prior to the present incident of murder accused Abdul Majid and some of his compatriots had deflated truck tyre of Abdul Malik (deceased) regarding which an F.I.R. was lodged by the victim deceased, secondly that a month thereafter i.e. four months prior to the present incident, Abdul Salam @ Neta, Abdul Aziz, Abdul Khaliq, Chotey, Akil Ahmad another Abdul Khaliq, Rafiq Ahmad, Amir Ahmad, Zamil Ahmad @ Katroo, Nanna, Kallu, Santu @ Abdul Salam, Intezar driver and Abdul Majid had committed dacoity at the house of Abdul Malik (deceased) concerning which crime also a report, against the miscreants, was lodged at the police station and they were also prosecuted and in that trial all the charged accused except Abdul Majid were convicted and sentenced. Ten of those dacoits also participated in the present murder incident but they were acquitted and consequently they all are now accused respondents in the present State appeal. Thirdly and lastly that proceedings under Sections 107/117 Cr.P.C. was subjudice between rival factions during the incident days and hence both the sides were hostile to each other. 6. Recapitulating actual incident it is alleged that on 17.8.1975 at 7 a.m. accused Abdul Khaliq, Akil Ahmad, Zamil Ahmad @ Katroo pulled down informant Mallu @ Abdul Hakim P.W.1 from his horse and assaulted him in-front of accused Amir Ahmad’s house when PW1 was returning to his house after washing his horse in the canal. Beaten by three accused informant /PW1 came to his house and narrated his belaboring to his brothers Abdul Malik (deceased), Abdul Khaliq, Hazoor Ahmad, Akil Ahmad and Zamil Ahmad. Beaten by three accused informant /PW1 came to his house and narrated his belaboring to his brothers Abdul Malik (deceased), Abdul Khaliq, Hazoor Ahmad, Akil Ahmad and Zamil Ahmad. When they all were proceeding for the police station to lodge a report against the assailants and they were about to approach canal culvert near the school, then they spotted all the twenty five accused-respondents named hereinabove sitting on the canal culvert armed with clubs (lathis) and spears (ballam).Informant and his associates turned back and efforted to return but they all were rounded up by the accused respondents in-front of the house of Abdul Rashid Namwardar at 8.a.m., where, at the instigation of Accused Abdul Salam @ Neta to annihilate Abdul Malik (deceased) to finish the dacoity case, assailants belabored informant and his companions and caused them injuries and thereafter they all escaped from the assault scene. Meanwhile, witnesses Mohd. Ishak, Mohd. Jafri, Abdul Qayum, Bhole, Irshad and others had arrived and they had witnessed the assault. 7. Informant returned to his village and got the FIR Ext. Ka-1 scribed from Abdul Majid and after being read out its contents, he signed on it in urdu. Accompanied by the injured on a roadster (tonga) informant came to police station Bhojipura, at a distance of 5 miles, and lodged his FIR same day at 10.30 a.m. against the named accused. From the police station all the injured were sent to PHC Bhojipura for their medical examination, where, except Abdul Malik who was dispatched to Bareilly for better management of his injuries as his condition was extremely critical, Abdul Khaliq, Zamil Ahmad, Akil Ahmad, Hazoor Ahmad and Mallu @ Abdul Hakim (informant), were medically examined same day from 1p.m. to 2.15 p.m. vide their medical examination reports Exts. Ka-3 to Ka-7, which are reproduced herein below : “Ka-3(Abdul Khaliq) Injuries : 1. Lacerated wound 3.5cm x 1cm x scalp deep on the left side of the head in the middle. 2. Contusion 12.5cm x 2.5cm on the lateral aspect of the left upper arm, upper 1/3 extending downwards from left shoulder joint. 3. Contusion 18cm x 2.5cm on the back of left side of chest extending from the left fold of left axil upto the medial margins of left scapula. 4. Contusion 14cm x 2.5cm on the back of chest right side below to lower border of right scapula. 3. Contusion 18cm x 2.5cm on the back of left side of chest extending from the left fold of left axil upto the medial margins of left scapula. 4. Contusion 14cm x 2.5cm on the back of chest right side below to lower border of right scapula. All injuries are simple and caused by hard blunt object. Duration Fresh. Ka-4(Zamil Ahmad) Injuries : 1. Incised curved wound 7.5cm x 1.5cm x scalp deep on the left side of head in the middle. 2. Contusion 12.5cm x 2.5cm on the lateral aspect of the left upper arm, upper 1/3 extending downwards from left shoulder joint. 3. Contusion 5cm x 2cm on the back of chest left side just below the lower scapular margin. All injuries are simple. Injury No. 1 is caused by sharp object and injury No. 2 by blunt hard object. Ka-5(Akil Ahmad) Injuries : 1. Incised curved wound 2.5cm x 1cm x muscle deep on the forehead, just above to left medial upper part of left eye brow. 2. Incised wound 1cm x 0.5cm x muscle deep on the left lateral side of the middle part of the nose. All injuries are simple. Caused by sharp object. Duration Fresh. Ka-6(Hazoor Ahmad) Injuries : 1. Contusion 5.5cm x 5cm on the dorsal aspect of the left hand. 2. Contusion 6.5cm x 2cm on the lateral aspect .................. (P.T.) upper 1/3 of the left forearm. ........................ (P.T.)Contusion 6cm x 1.5cm on the back of the ...............(P.T.) side of chest on the middle part of scapula. ..............(P.T.)Contusion 1cm linear in shape on the right thumb ...........(P.T.) the middle phalanx. All injuries are simple. All are caused by hard blunt object. Except injury No. 4 caused by friction. Duration Fresh. Ka-7(Mallu @ Abdul Hakim/informant) Injuries : 1. Contusion 5.5cm x 4cm on the posterior aspect of the upper 1/3 of the left forearm. 2. Contusion 3.5cm x 2cm on the left lower 1/3 of the forearm. Posterior aspect. All injuries are simple, caused by hard blunt object. Duration Fresh.” Abdul Malik (injured/deceased), who was dispatched to Bareilly, was medically examined in district hospital Bareilly on the incident date itself at 2.50 p.m. by Dr. Satya Pal P.W. 5 vide his medical examination report Ext. Ka-8. Doctor had found following injuries on his person : Ka-8 “Injuries : 1. All injuries are simple, caused by hard blunt object. Duration Fresh.” Abdul Malik (injured/deceased), who was dispatched to Bareilly, was medically examined in district hospital Bareilly on the incident date itself at 2.50 p.m. by Dr. Satya Pal P.W. 5 vide his medical examination report Ext. Ka-8. Doctor had found following injuries on his person : Ka-8 “Injuries : 1. Lacerated wound 1.5cm x 0.4cm x bone top of scalp middle with traumatic swelling 6cm x 6cm surrounding. Slightly bleeding present. Kept u.o. Advised X-ray. 2. Abrasion 2cm x 0.2cm front right elbow. 3. Contusion 6cm x 6cm right parietal region scalp 4cm above ear. Fresh, No. 1, 3 by blunt object. Kept u.o. Advised X-ray skull No. 2 by friction, simple.” 8. After battling for his life till next day, Abdul Malik lost his life in the hospital on 18.8.1975 at 8.15p.m. and hence autopsy on his cadaver was performed on 19.8.1975 at 4.50 p.m. vide Ext. Ka-2 by Dr. R.R. Agarwal, (P.W.3) Medical Officer District Hospital, Bareilly. The cadaver of the deceased was brought to the autopsy doctor by constables Zaheer Ahmad and Chheda Lal of police station Kotwali, Bareilly, who had identified the corpse of the deceased to the doctor. According to the facts noted in the autopsy report Ext. Ka-2, deceased was 30 years of age and about a day had passed since he had demised. He had a thin built body and rigor mortis was present on his all the limbs and no decomposition had started. He had hydrocele on the left side but the injuries No. 3, 4, 6 and 7, noted in the police report, were not found on his corpse. Clotted blood was present under the scalp in front part of occipital region, under injury No. 1 communicated fracture right side skull 22cm long antro posteriorly from eye brow to occipital bone through parietal bone 1.5cm from midline, this FR line - up to mid suture in the middle and downward 5cm in the parietal bone were a piece of bone 3cm x 2cm was absent. Stomach was empty and feces were accumulated in the small and large intestine. Following ante-mortem injuries were detected by the autopsy doctor on the cadaver of the deceased : “1. Stitched dressed wound 14.5cm long over right side head to parietal region ....... right ear with drain (rubber corrugated) in the wound. Stomach was empty and feces were accumulated in the small and large intestine. Following ante-mortem injuries were detected by the autopsy doctor on the cadaver of the deceased : “1. Stitched dressed wound 14.5cm long over right side head to parietal region ....... right ear with drain (rubber corrugated) in the wound. On removing the stitches it is found a lacerated wound and appears to be operated. 2. Scabbed healed wound 1cm x 0.2cm on right side head 4cm above the injury No. 1.” 9. Head Moharir Hari Shankar of P.S. Bhojipura had recorded the FIR Ext. Ka-1 and had prepared chik FIR Ext. Ka-11. G.D. Entry No. 16 relating to registration of crime is Ext. Ka-12. Investigation into the offence was set into motion by SI Kripa Ram P.W. 8, who recorded the statements of witnesses, conducted spot inspection and prepared site plan Ext. Ka-13, collected blood stained attires of injured Abdul Khaliq, Akil Ahmad and Zamil Ahmad and prepared it’s recovery memo Ext. Ka-14. On 3.9.1975 blood stained attires of the deceased were seized by the I.O. and recovery memo Ext. Ka-15 was penned down by him. Concluding investigation, I.O. charge-sheeted twenty accused on 6.9.1975 vide Ext. Ka-16. Rest of the accused were charge-sheeted subsequently but due to the burning of the original case diary and destruction of the duplicate case diary, second charge-sheet against rest of the accused could not be proved by the I.O. P.W. 8. 10. On the basis of the charge-sheet Court proceedings against accused commenced in the Court of C.J.M., Bareilly by registering criminal case against them. Since disclosed offences were triable by Sessions Court, consequently C.J.M. Bareilly committed the case against the accused respondents to the Sessions Court where on 25.6.1979, S.T. No. 277 of 1979, State v. Abdul Salam and 24 others, was registered before Sessions Judge, Bareilly, which trial was transferred to 4th Additional Sessions Judge, Bareilly for trial. 11. Learned trial Judge charged all the accused under Sections 302/149, 324/149 and 323/149 IPC on 16.4.1980. It further charged twenty two of the accused under Section 147 IPC, accused Abdul Salam under Section 302 simplicitor and two of the accused Amir Ahmad and Zamil Ahmad under Section 148 IPC. 11. Learned trial Judge charged all the accused under Sections 302/149, 324/149 and 323/149 IPC on 16.4.1980. It further charged twenty two of the accused under Section 147 IPC, accused Abdul Salam under Section 302 simplicitor and two of the accused Amir Ahmad and Zamil Ahmad under Section 148 IPC. All the aforesaid charges were read out and explained to respective accused who all denied them and pleaded not guilty and consequently to establish their guilt, Sessions trial procedure against them commenced to establish their guilt and framed charges. In the trial prosecution relied upon eight witnesses in all including informant P.W.1 Mallu @ Abdul Hakim and P.W.2 Hazoor Ahmad as fact witnesses. P.W. 3 Dr. R.R. Agarwal (autopsy doctor), P.W.4 Dr. V.S. Saxena (examined the injured), P.W.5 Satya Pal (examined Abdul Malik deceased), P.W.6 Robinson Messy (prove bed-head-ticket of the deceased), P.W.7 Dr. K.K. Kakkar (doctor, who operated upon the injured deceased and treated him) and P.W.8 S.I. Kripa Ram I.O. were the formal witnesses. 12. In their testimonies both the fact witnesses narrated their FIR version besides disclosing underlying motives for the incident. They further stated that amidst assault injured Hazoor Ahmad had wielded a danda in self defence. Abdul Malik, injured/deceased, after being inflicted with injuries had squatted on the ground in the mud and he had become speechless. Post assault informant came to the shop of Ashfaq, twenty or thirty yards away, where he met Abdul Majid to whom he had dictated the FIR, Ext. Ka-1, who had taken it down and it took ten or twelve minutes in penning it down and meanwhile injured were lying at the assault scene. PW1/informant further disclosed that Abdul Majid was one of the accused in the dacoity case referred to herein above, who later on was acquitted in that trial. After preparation of the FIR when PW1/informant returned to the incident spot none of the injured were present as meanwhile they had gone to the tonga stand five or six paces south-east of the canal culvert. Abdul Malik was transported to the stand on a cot. At the tonga stand informant joined rest of the injured and from there they had proceeded for the police station about 10/11 kilometers away in two tongas alongwith Abdul Qayum and Abdul Majid, reaching there in one and a half or three quarter of an hour. Abdul Malik was transported to the stand on a cot. At the tonga stand informant joined rest of the injured and from there they had proceeded for the police station about 10/11 kilometers away in two tongas alongwith Abdul Qayum and Abdul Majid, reaching there in one and a half or three quarter of an hour. At the police station they had met Mohammad Sabir, Abdul Salam @ Neta, Amir Ahmad and four or five other accused. Informant further deposed that hospital/PHC is two or two and half Kms away from the police station and in their tongas they had arrived there within five minutes. At the PHC doctor had not examined Abdul Malik but had dispatched him to Bareilly, whereas rest of the injured were examined and medically treated by him. From the hospitalPW1 and other injured had returned to the police station where they were booked in penitentiary alongwith four or five accused of cross case. PW1/informant denied the defence suggestion that he had concocted the FIR after due consultation and deliberations with the police after becoming aware about the FIR lodged by the rival/accused respondent’s side. Regarding injuries sustained by the accused side PW1/informant admitted that he had not mentioned in his FIR that Hajoor Ahmad had wielded danda in self defence and he also failed to explain why this fact is not mentioned in his 161 Cr.P.C. statement albeit he had told it to the I.O. He further deposed that he had not seen any injury of the accused side at the spot but admitted that he had seen them at the police station. Paras 6/7 of his statement in this regard is significant. There are significant omissions of assigning specific weapons to each of the accused and motive of deflating the tyre in his FIR and 161 statement though he claims to be an eye-witness of tyre puncture incident alongwith many other persons named in para 10 of his depositions. About second motive respecting dacoity informant stated that he was not a witness in that incident and after that crime animosity had generated between them and accused in that crime were sentenced to two months imprisonment. About second motive respecting dacoity informant stated that he was not a witness in that incident and after that crime animosity had generated between them and accused in that crime were sentenced to two months imprisonment. Concerning 107/116 Cr.P.C. proceedings he admitted both the sides being involved in it and it being concluded.PW1/informant admitted that scribe of FIR Abdul Majid is son-in-law of Hasan Pradhan of villages Ghora and Tanda and both these villages were factional ridden. PW1/informant further testified that he and other injured of his side were accused in cross version lodged by the accused side by informant Mohd. Sabir. In para 13 informant narrated that on the incident date he was pulled down from his horse catching him by his collar for the reason that he was abusing accused side alongwith Abdul Malik and was beaten but he had not mentioned reason for his assault in his FIR nor had informed it to the I.O. He however admitted that he had not sustained any visible injury nor his clothes were torned off. He denied defence case that he had no horse nor any such incident as alleged by him ever occurred. PW1 further testified that they were chased by the accused to hundred and fifty yards in a lane from the culvert to the house of Abdul Rashid and while sprinting they were not assaulted and accused had assaulted them coming from southern side. PW1/informant failed to identify accused who had attacked him nor he could disclose their numbers but he stated that all the six were belabored. PW1/informant was suggested by the accused that no such incident as stated by him took place and on the incident date he alongwith his other forty associates had assaulted Mohd. Sabir, Abdul Khaliq, and Amir Ahmad near the house of Habib Ahmad after lying in ambush in ruins and those three accused wielded clubs in their self defence and Amir Ahmad’s club had an iron ring studded in it and to save their skins that a false story was fabricated by the informant. 13. Coming to the depositions of Hazoor Ahmad PW2, in his examination -in-chief and cross-examination he has spelt out those very facts already stated by PW1 and therefore eschewing repetition we record only some pivotal significant aspects of his testimonies. 13. Coming to the depositions of Hazoor Ahmad PW2, in his examination -in-chief and cross-examination he has spelt out those very facts already stated by PW1 and therefore eschewing repetition we record only some pivotal significant aspects of his testimonies. PW2 has stated that he only had a club of two and a half or three feet long and one or one and a half inch in diameter from his side and rest of his companions were bare handed. He also was an accused in the cross case. He mentioned that PW1 had a horse since two years and the horse incident had occurred at 7.30 a.m. in which PW1 had not sustained any physical injury. He however stated that he had left that club near the culvert and did not carry it any further. He further stated that it was Abdul Salam who had assaulted Abdul Malik (deceased) at the instigation of Abdul Salam @ Neta. This witness also was unable to identify attackers and their numbers. He admitted that his blows might have hit Mohd. Sabir and Abdul Khaliq and others and three of the accused had sustained injuries but immediately thereafter he added that he could not tell as to whether these accused had sustained injuries by his blows or not? He further mentioned that he had not seen any injury on the accused side at the spot. He admitted that at the police station five of the accused were already present since before their arrival including three injured, Abdul Salam @ Neta and another Abdul Salam. He was also suggested the same defence version of lodging a consultative counter false FIR, to which this witness has denied. 14. Now adverting to the formal witnesses they had detailed those very facts which have already been slated herein above in their examination -in -chief. Dr. R.R. Agarwal, PW3 further stated that blood clot was present underneath injury No. 1 on the scalp in fronto parieto occipital region with communicated fracture right side skull 22 cm long antero posteriorly from eye brows to occipital bone through parietal bone 1.5 cm from midline covering head top and a bone piece of 3cmx 2cm of parietal bone was missing. Blood clot underneath membranes was present in right parietal and occipital region. Blood clot underneath membranes was present in right parietal and occipital region. During cross-examination PW3 had stated that he had not found injuries No. 2 &3 noted by another doctor Satya Pal and since injury No. 1 was post-operative injury therefore he could not give any opinion about the same. Dr. V.S. Saxena, PW4 further deposed that all the injuries of all the injured were simple in nature and were inflicted by some hard blunt object. He further stated that same day he had examined Amir Ahmad, Mohd. Sakir and Abdul Khaliq and had noted down their injuries and had prepared their injury reports vide Ext. Kha 1 to Kha3.Contusions and abrasions sustained by them could have been caused by clubs whereas their incised wounds could have been inflicted by tabal and these injuries could have been caused at about 8a.m. same day. Since Dr. Satya Pal, PW5 and Robinson Massey, PW6, were not cross-examined therefore there is nothing material to mention from their evidences. Dr. K.K. Kapoor, PW7 had stated that injured/deceased was admitted in the Mission Hospital, Bareilly, on 18.7.75 at 8.45 a.m. and he was unconscious X-ray report of injured/deceased is Ext. ka-9 and he was also operated upon. There was lever fracture on his front parietal bone and underneath it blood clot was present. Beneath his membranes black blood was collected which stared oozing out and therefore a rubber tube was inserted after packing the wounds. Operation note of the injured/deceased by this witness is Ext. ka-10. Same day Abdul Malik, injured /deceased expired in the hospital at 8.15p.m. and sustained injury on the head which was inflicted by some blunt object was sufficient in the ordinary course of nature to cause his death. During his cross-examination this witness PW7 had testified that he did not know from where the injured/deceased was referred and his uncle Mohd. Ismail had brought him to the hospital, but his name is not entered in deceased’s bed head ticket. Injured/deceased remained unconscious till his death. He was operated upon twice and two holes were made in his head sufficiently big to penetrate operative instruments inside. 15. I.O., Kripa Ram, S.I. had proved chik FIR, Ext. Ka-11 registered by HM Hari Shankar and corresponding GD entry Ext. Ka-12. He had also proved site plan, recovery memos of clothes of injured and the deceased and his submitted charge-sheet as Ext. 15. I.O., Kripa Ram, S.I. had proved chik FIR, Ext. Ka-11 registered by HM Hari Shankar and corresponding GD entry Ext. Ka-12. He had also proved site plan, recovery memos of clothes of injured and the deceased and his submitted charge-sheet as Ext. ka-13,14, 15 & 16. I.O. could not prove contradictions and previous statements of the witnesses as the original case diary was brunt and duplicate second copy was destroyed by termites. He, however, admitted that same day Mohd. Sabir had lodged a report against Abdul Zabbar and others under Section 147/148/323/324 I.P.C. at 10.15a.m. which FIR, Ext. Kha-4, too was registered by HM Hari Shankar. GD entry of registration of this FIR is Ext. kha-5. I.O. further deposed that Amir Ahmad, Mohd. Sakir and Abdul Khaliq accused were injured and aforesaid HM had also sent them for their medical examinations and he had filed charge-sheet in that case also which was registered on the written information of Mohd. Sabir and trial against the accused on the basis of that charge-sheet was also pending in the same Court. I.O. further deposed that he had filed first charge-sheet on 17.8.75 whereas second charge-sheet was submitted by him on 6.9.75. PW8/I.O. also admitted that he had not investigated horse incident nor he had seen Mallu’s horse. He also admitted that no club was found by him at the spot and he had not interrogated locality witnesses where assault had taken place. 16. In their statements under Section 313 of the Code accused admitted relationships amongst them but abjured rest of the facts and generally pleaded their false implication due to faction rivalry and deceased dying because of operation. Some of the accused also admitted their conviction for dacoity crime and pendency of proceedings under Section 107/116 Cr.P.C. It was through statements of Mohd. Sabir, Abdul Salam and Abdul Khaliq that they pleaded their defence. Mohd. Sabir stated that a day prior to the incident Mallu was cutting paddy crops of his field on which Mohd. Sabir had given him two slaps. Next day Abdul Sabir, his brother Abdul Khaliq, and Amir Ahmad were going to Bareilly and then near the house of Habib, Mallu and others were laying in ambush. Kallu and Abdul Malik had tabals, whereas rest of the miscreants were armed with clubs and they all had launched an assault on Mohd. Sabir and his associates. Next day Abdul Sabir, his brother Abdul Khaliq, and Amir Ahmad were going to Bareilly and then near the house of Habib, Mallu and others were laying in ambush. Kallu and Abdul Malik had tabals, whereas rest of the miscreants were armed with clubs and they all had launched an assault on Mohd. Sabir and his associates. In their defence three of the victims Abdul Sabir, his brother Abdul Khaliq, and Amir Ahmad wielded clubs and because of factional rivalry they have been falsely implicated. Abdul Salam Stated that deceased was involved in illegal rice trade and once or twice his trucks were got seized at his instance and that is why he has been falsely implicated in the crime. He further stated that police is in hands and gloves with deceased and therefore he was nailed in a false dacoity case in which he was acquitted. Abdul Khaliq pleaded the same defence as that of his brother Mohd. Sabir. Accused rested their defence plea only on documentary evidences in the form of various defence exhibits and did not lead any oral evidence. 17. With above being the background factual matrix that we have heard Sri Rama Shankar Yadav, learned AGA for the appellant State Sri Vinay Saran learned amicus curie for the surviving accused respondents and have searchingly perused and scanned entire trial Court record recapitulating the fact that the appeal by the three convicted accused has become infructuous and has been dismissed as such as all the three of the appellants therein namely Mohd. Sabir, Abdul Khaliq and Amir Ahmad are dead. So is the case with respondents accused No. 1 Abdul Salam @ Neta, No. 3 Akil Ahmad son of Usman Rahalwan, No. 5 Kalloo son of Abdul Bashir, No. 8 Abdul Vakil @ Nanna, No. 9 Amir Ahmad son of Mohd. Usman, No. 11 Zamil Ahmad son of Habib Ahmad, No. 12 Chotey son of Abdul Sattar, No. 15 Noor Ahmad son of Ali Umar, No. 23 Mohd. Sabir, No. 24 Abdul Khaliq and No. 25 Amir Ahmad as all these accused respondents are dead. Usman, No. 11 Zamil Ahmad son of Habib Ahmad, No. 12 Chotey son of Abdul Sattar, No. 15 Noor Ahmad son of Ali Umar, No. 23 Mohd. Sabir, No. 24 Abdul Khaliq and No. 25 Amir Ahmad as all these accused respondents are dead. We therefore have to consider State appeal against acquittal only against accused respondents No. 2 Zamil Ahmad @ Katroo, No. 4 Abdul Salam, No. 6 Abdul Salam son of Kalloo, No. 7 Zamil @ Bahra son of Kalloo, No. 10 Rafiq Ahmad son of Habib Ahmad, No. 13 Bilayati son of Chotey, No. 14 Kalloo son of Abdul Zabbar, No. 16 Abdul Qayum son of Abdul Zabbar, No. 17 Abdul Malik, No. 18 Abdul Qayum, both sons of Abdul Aziz, No. 19 Abdul Majid son of Abdul Gaffar, No. 20 Shafiq Ahmad son of Abdul Bashir, No. 21 Taufeek @ Faqira son of Amir Ahmad and No. 22 Shafiq Ahmad @ Buddal son of Mohd.Ismail. 18. Launching a scathing attack on the impugned judgment of acquittal, learned Additional Government Advocate submitted that learned trial judge has failed to consider that it was a day light incident with many injured witnesses whose presence at the spot during the incident is established beyond doubt and hence there was insufficient and feeble reasons for him to acquit respondents accused. All of them are named in the FIR and they were very well known to the prosecution side and hence learned trial Judge fell in grave error in awarding benefit of doubt to them. Defence has nowhere challenged identity of the assailants and in an incident like the present it is puerile to expect that witnesses will be able to locate and divulge a graphic description of the entire incident with exactitude. Insignificant and trivial omissions and contradictions do not robe the prosecution story of it’s main substratum and credibility and therefore it was illegal for the learned trial Judge to have conferred benefit of doubt on the accused respondents. Segregation of respondent’s case with other three convicted accused was based on a wrong hypothesis by adopting an uncalled for approach which no person of ordinary prudence would have adopted on the slated fact situations. Both the fact witnesses without vacillating corroborated each other in all material aspects of the incident and defence had miserably failed to dislodge their depositions. Segregation of respondent’s case with other three convicted accused was based on a wrong hypothesis by adopting an uncalled for approach which no person of ordinary prudence would have adopted on the slated fact situations. Both the fact witnesses without vacillating corroborated each other in all material aspects of the incident and defence had miserably failed to dislodge their depositions. They both are creditworthy, reliable and trustworthy witnesses and their testimonies could not have been ignored on premium of trivialities. Accused side were the aggressors and it is convincingly proved that they had chased and assaulted prosecution side for the recorded motives. It was strenuously urged that once learned trial Judge opted to believe prosecution story respecting three of the accused, who are now dead, and once it opined that accused side were the perpetrators of the incident, with that analysis there was no scope left of the learned trial Judge to segregate the case of respondent accused from that of main assailants as they all had formed an unlawful assembly and had acted in a concerted manner. Happening of the incident with presence of some of the accused and their participation was ex facie proved, therefore learned trial Judge committed mistake in extending benefit of doubt to the accused respondents. Motive alleged by the prosecution had sufficient potentiality to compel accused respondents to take law in their hands and indulge into the offence. Injuries from the accused side have been explained with sufficient clarity and hence there was no reason to doubt the offered explanation. Accused cannot gain any mileage from insignificant omissions in the FIR as neither the FIR is an encyclopedia nor is an epic to register each and every detail. Its purpose is only to set the law into motion and to bring the culprits to books. Wrapping up the submissions it was beseeched that State appeal against acquittal be allowed and surviving respondents be suitably convicted and sentenced. 19. Arguing conversely, Sri Vinay Saran, learned amicus curie, harangued that in an appeal against acquittal unless the opinion by the learned trial Court is perverse and is against merits of evidence on record, judgment of acquittal cannot be reversed. 19. Arguing conversely, Sri Vinay Saran, learned amicus curie, harangued that in an appeal against acquittal unless the opinion by the learned trial Court is perverse and is against merits of evidence on record, judgment of acquittal cannot be reversed. No perversity has been pointed out by the appellant’s counsel in the impugned judgment and order and in fact learned trial Court has vetted through the entire material produced before him from a correct prospective and had adopted a pragmatic and reasonable approach which do not call for any interference by this Court in this appeal. Law relating to appeal against acquittal has been crystallized into too well-settled trite law that even if the appellate Court could have taken a different view on the given facts and circumstances but it should not upturn trial Court’s judgment only because of that reason unless it is proved to be unsustainable and perverse. Looking to the unconvincing evidences of both the fact witnesses, delay in lodging of the FIR, number of injuries being wholly incommensurate with number of accused, causing only simple hurt with a single fatal blow inflicted on the deceased and convincing nature of accused defence must have prompted learned trial judge to lean in favour of acquittal of those accused who had not been assigned any specific roles into the incident and who could have been nailed in due to factionalism to seek vengeance. Since the appeal relates to cross cases/versions therefore it was the duty of the learned trial Court to summate the facts on the touch stone of probability and creditworthiness to decide the aggressor. Defence version of destroying paddy crop and giving of two slaps and launching an assault to avenge temerity seems to have an air of reality rather than prosecution allegation and hence if the learned trial Court has based his opinion on defence story, no fault can be found with his analysis and precipitated residue of acquittal argued Sri Saran. At the earliest opportunity prosecution had tried to suppress accused injuries by feigning ignorance about the same but later on they did offer an explanation for the same which is wholly unconvincing and seems to have been introduced only to wriggle out from piquant and uncomfortable situation of none explanation of injuries of the accused side to disentitle them benefit of the same. None of the two fact witnesses, PW1 & 2, could be relied upon concerning injuries sustained by the accused side as it is wholly gibberish and too weird to accept that the person who was inflicted with injuries was unable to name his attackers. Such an uncertain evidence do not inspire any confidence and if the learned trial Judge acted with due care and caution, his opinion cannot be snipped only for the reason that other view may also be possible. Mere presence of a witness is no guarantee of his being a truthful witness and there is no universally accepted formula for the same. It is for the witnesses to establish by their testimonies that he is truthful and reliable witness and his evidence cannot be brushed aside and in that attempt both the fact witnesses in the present appeal have miserably failed. Reasons for acquittal finding favour with the learned trial Judge, who had the best opportunity to mark the demeanor of witnesses are well merited and no criticism in that respect can be advanced successfully. Incident had occurred in 1975 and more than thirty seven years have gone by and therefore it too late in the day to convert an acquittal into conviction on such hazy and shaky evidences urged learned amicus curie. At last concluding his submissions it was pleaded that State appeal against acquittal being devoid of merits be dismissed by affirming the acquittal of accused respondents and setting them at liberty and the Damocles sword of this appeal against acquittal hanging over their heads for more than three decades be taken off. 20. We have bestowed out serious thoughts to the rival submissions vis-a-vis entire material and evidences on record. This State appeal is against acquittal of accused respondents. Major part of grey areas relating to the manner and approach to be adopted by the appellate Court while considering an appeal against acquittal has already been filled up by catena of apex Court pronouncements and it is next to impossible to take stock of all those decisions, but certainly common ratio decidendi running through all those judicial pronouncements can be taken note off. It is now trite law that so long as a verdict of acquittal is not unsettled by an appellate Court, there remains a presumption of innocence and not guilty in favour of accused, the benefit of which has to be conferred on him so long as he is not held guilty. Learned trial Court has the best opportunity to scan and vet through the prosecution evidences noting the demeanor of the witnesses. He is the Court of first hand and the entire case blossoms before it and therefore unless it’s reasons and conclusions suffer from glaring erroneous approach, glaring mistakes and patent error of law and/or of facts and his analysis is so uncannily unsustainable and surreal that no man of ordinary prudence would have arrived at the same conclusions as that of learned trial Court in the given fact situations, that is to say that his opinion is so perverse that it must and ought to be overruled to impart justice, the view by the learned trial Court should not be reversed and set aside, albeit appellate Court may be of the opinion that had it been the Court of first hand it would have taken a different view. Thus mere difference of opinions is not sufficient to set aside trial Court’s decision. It ought and must be shown convincingly that the entire approach of the learned trial Court was faulty or that it had left out significant and vital evidences from being considered or that it has totally misdirected itself in scanning the evidences and had conferred undue and undeserved benefit to the accused irrespective of the fact that his guilt has been established beyond any shadow of reasonable doubt to the hilt. If the opinion of the learned trial Judge is reasonably possible or could have been arrived at without straining the evidences, then appellate Court should not substitute it’s decision with that of the learned trial Judge. If the view by the learned trial Court is possible it must be sustained and only in circumstance that it is wholly wrong and erroneous view that it should be reversed that is to say that it is only in circumstances that by no hypothesis the reasoning and conclusions arrived at by the learned trial Court can be sustained and there exist compelling reasons to alter the decision that a judgment of acquittal should be disapproved and set aside. This we can gather from the following apex Court decisions : 21. In Murugesan v. State, (2012) SCC 383, it has been held by the apex Court as under : “19. An early but exhaustive consideration of the law in this regard is to be found in the decision of Sheo Swarup v. King Emperor, wherein it was held that the power of the High Court extends to a review of the entire evidence on the basis of which the order of acquittal had been passed by the trial Court and thereafter to reach the necessary conclusion as to whether order of acquittal is required to be maintained or not. In the opinion of the Privy Council no limitation on the exercise of power of the High Court in this regard has been imposed by the Code though certain principles are required to be kept in mind by the High Court while exercising jurisdiction in an appeal against an order of acquittal. The following two passages from the report in Sheo Swarup adequately sum up the situation: “There is, in their opinion, no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has ‘’obstinately blundered’, or has ‘’through incompetence, stupidity or perversity’ reached such ‘’distorted conclusions as to produce a positive miscarriage of justice,’ or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views 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 he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.” 20. The principles of law laid down by the Privy Council in Sheo Swarup have been consistently followed by this Court in a series of subsequent pronouncements of which reference may be illustratively made to the following: Tulsiram Kanu v. State, Balbir Singh v. State of Punjab, M.G. Agarwal v. State of Maharashtra, Khedu Mohton v. State of Bihar, Sambasivan v. State of Kerala, Bhagwan Singh v. State of M.P. and State of Goa v. Sanjay Thakran. 21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup is to be found in para 42 of the Report in Chandrappa v. State of Karnataka. The same may, therefore, be usefully noticed below: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, reappreciate and reconsider 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. (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. 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.” (emphasis supplied) 22. Another significant aspect of the law in this regard which has to be noticed is that an appeal to this Court against an order of the High Court affirming or reversing the order of conviction recorded by the trial Court is contingent on grant of leave by this Court under Article 136 of the Constitution. However, if an order of acquittal passed by the trial Court is to be altered by the High Court to an order of conviction and the accused is to be sentenced to death or to undergo life imprisonment or imprisonment for more than 10 years, leave to appeal to this Court has been dispensed with and Section 379 of the Code of Criminal Procedure, 1973, provides a statutory right of appeal to the accused in such a case. The aforesaid distinction, therefore, has to be kept in mind and due notice must be had of the legislative intent to confer a special status to an appeal before this Court against an order of the High Court altering the acquittal made by the trial Court. The issue had been dealt with by this Court in State of Rajasthan v. Abdul Mannan, in the following terms, though in a different context: “12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial Court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court.” In the same decision further it has been held by the apex Court as under : “32. In the above facts can it be said that the view taken by the trial Court is not a possible view? If the answer is in the affirmative, the jurisdiction of the High Court to interfere with the acquittal of the appellant-accused, on the principles of law referred to earlier, ought not to have been exercised. In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial Court did not reflect a possible view. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial Court is not a possible view. The use of the expression “possible view” is conscious and not without good reasons. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial Court is not a possible view. The use of the expression “possible view” is conscious and not without good reasons. The said expression is in contradistinction to expressions such as “erroneous view” or “wrong view” which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible. 33. The expressions “erroneous”, “wrong” and “possible” are defined in Oxford English Dictionary in the following terms: “erroneous.— wrong; incorrect. wrong.—(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral. possible.—(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable.” 34. It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a Court lower in the hierarchical structure may be termed as erroneous or wrong by a superior Court upon a mere disagreement. But such a conclusion of the higher Court would not take the view rendered by the subordinate Court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a Court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher Court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial Court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial Court cannot be interdicted and that of the High Court supplanted over and above the view of the trial Court.” 22. In Mookkiah and another v. State, represented by Inspector of Police, Tamil Nadu, (2013) 2 SCC 89 , it has been held as under : “9. In Mookkiah and another v. State, represented by Inspector of Police, Tamil Nadu, (2013) 2 SCC 89 , it has been held as under : “9. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges levelled against them. On appeal by the State, the High Court, by the impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 IPC and awarded RI for life. Since the counsel for the appellants very much emphasised that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyse the scope and power of the High Court in an appeal filed against the order of acquittal. 10. This Court in a series of decisions has repeatedly laid down that “3. ... as the first appellate Court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the Court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.” (Vide State of Rajasthan v. Sohan Lal) 11. In State of M.P. v. Ramesh, this Court, while considering the scope and interference in appeal against acquittal held: “15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate Court being the final Court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. It is settled proposition of law that the appellate Court being the final Court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate Court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent Court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate Court should not disturb the findings of acquittal.” 12. In Mrinal Das v. State of Tripura, while reiterating the very same position, one of us, P. Sathasivam, J. held: “14. There is no limitation on the part of the appellate Court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate Court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate Court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are ‘’compelling and substantial reasons’ for doing so. If the order is ‘’clearly unreasonable’, it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate Court is competent to reverse the decision of the trial Court depending on the materials placed.” 13. In Rohtash v. State of Haryana, this Court held: “27. The High Court interfered with the order of acquittal recorded by the trial Court. The law of interfering with the judgment of acquittal is well-settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate Court can interfere with the order of the acquittal. The law of interfering with the judgment of acquittal is well-settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate Court can interfere with the order of the acquittal. The appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar and Govindaraju v. State.)” 14. In a recent decision in Murugesan v. State, one of us, Ranjan Gogoi, J. elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup v. King Emperor and a series of subsequent pronouncements, in para 21 summarised various principles as found in para 42 of Chandrappa v. State of Karnataka, as under: “21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup is to be found in para 42 of the Report in Chandrappa v. State of Karnataka. The same may, therefore, be usefully noticed below: ‘’42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, reappreciate and reconsider 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. (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. 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.’” (emphasis in original) In Ramesh Harijan v. State of U.P., AIR 2012 SC 1979 , it has held by the apex Court as under : “20. The law of interfering with the judgment of acquittal is well-settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate Court can interfere with the order of the acquittal. “20. ... The appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” 23. With above exposition of law when the facts of the present appeal are critically examined it becomes evident that the appeal relates to cross versions spelt out by both the sides. Happening of the incident, time, date and place of incident, participation of informant, deceased and injured form the prosecution side and three injured from the accused sides all these facts are acknowledged to both the sides. Happening of the incident, time, date and place of incident, participation of informant, deceased and injured form the prosecution side and three injured from the accused sides all these facts are acknowledged to both the sides. From testimonies of both the fact witnesses it emerges that presence of Mallu @ Abdul Hakim/PW1, Hazoor Ahmad/PW2, Abdul Khaliq, Jamil Ahmad, Aqil Ahmad, and of deceased Abdul Malik at the time of the occurrence are admitted and so are the presence of accused Mohd. Sabir, Amir Ahmad, Abdul Khaliq. Weapons of assault being Clubs (lathi), stick (danda) and spear (ballam) during the incident and infliction of injuries on the rival sides by these weapons are also not in dispute. It is also admitted that three of the accused namely Mohd. Sabir, Abdul Khaliq, and Amir Ahmad nee Chand had sustained injuries in the same incident.Whereas Mohd. Sabir had sustained both lacerated and incised wounds, rest of the two were caused incised injuries. Both the fact witnesses had offered an explanation for those injuries to which we shall discuss in the later part of this judgment. It is also established that from the side of accused respondents FIR was lodged prior in time at 10.15a.m. whereas FIR from the side of the prosecution was lodged at 10.35a.m., though there is not much of a difference between both the times. Thus what is to be examined is which of the two versions is confidence inspiring and which side was the aggressor and where the respondents accused had actually participated in the incident or they have been nailed in falsely due to factional village rivalry. Learned trial Judge after summating facts and circumstances held that accused respondents have been framed in falsely and therefore has acquitted them. In our ultimate analysis we concur with the same conclusions for the following reasons. 24. Firstly that since it is case eye-witness account motive for committing the crime relegates into background. Whatever motive has been alleged by both the sides may be sufficient for them to indulge into the offence more so when they both were hostile to each other to such an extent that even a dacoity incident had occurred between them wherein sentence awarded to the miscreants was a paltry two months imprisonment. Whatever motive has been alleged by both the sides may be sufficient for them to indulge into the offence more so when they both were hostile to each other to such an extent that even a dacoity incident had occurred between them wherein sentence awarded to the miscreants was a paltry two months imprisonment. For both the sides this could have been an apple of discord and a faux pas, for the victim for insufficient sentence and for the accused their conviction. Therefore nothing much turns on this. Concerning motive only this much can be observed that prosecution has failed to establish stopping of horse and assault incident convincingly and from the evidences it seems to be a dicey allegation and we are in grave doubt about its genuineness. None sustaining of any physical injury by the victim nor showing of the horse to the I.O. and not probing of that incident by the I.O. all this aggravates suspicion about happening of that incident. It seems that I.O. did not probe into that incident because he was never informed about it by the informant. It is the categorical statement of the informant in para 13 of his deposition that he had not informed the I.O. as to why he was pulled down from the horse and was assaulted. He also stated that he had not shown the horse to the I.O. and from kicks and fists he had not sustained any visible injury nor his cloths were torned. He was specifically suggested that he did not own a horse nor any such incident as alleged by him ever occurred. In our opinion such an incident could not been causa causans of the present occurrence. Contrary to it damaging of paddy crop of accused Mohd. Sabir and uprooting of crops and slapping incident in defence plea seems to have an air of reality and that seems to be the immediate cause for the present incident. 25. Moreover in our view, so far as acquitted accused are concerned, there is absolutely no specific allegation against them in the FIR and in examination-in-chief of informant/PW1, except alleging that they had assaulted at the instigation of Abdul Salam @ Neta (since dead). PW2 assigned specific role of assaulting the injured/deceased to accused Abdul Salam s/o Mohd. Yakoob and to nobody else. PW2 assigned specific role of assaulting the injured/deceased to accused Abdul Salam s/o Mohd. Yakoob and to nobody else. Thus for the first time through statement of PW2 that specific role has been assigned only to one of the accused. This embellishment by PW2 seems to be conscious and deliberate and without mentioning of it at any previous stage it is very hazardous to rely on such specification by PW2 at such a belated stage in the trial. Attour PW1 & PW2 with allegations of assault being made by each and every one of the accused during the incident are not truthful and reliable witnesses ostensibly for the reason that number of accused alleged to have participated into the assault was twenty five (25), whereas total number of injuries sustained from the prosecution side cumulatively were only seventeen (17) and hence number of injuries were incommensurate with number of accused and consequently it can be safely inferred that at least eight (8) of the accused did not participate in the assault and they might have been falsely implicated. Since from the testimonies of both the fact witnesses it is impossible to separate the grain from the chaff and unravel the truth, as the roles assigned to all the accused are so inextricably mixed up that it cannot be separated by all sincere efforts, benefit of non-participation has to be conferred on all the accused in an incident which had occurred between those two sides who were inimical and hostile to each other in a factional ridden village. The golden rule of criminal jurisprudence is that guilt of the accused has to be established beyond shadow of all reasonable doubt and once that rule has been breached imbibing doubt as to the participation of all the accused in the crime, the benefit has to be reaped by all those who deserve it. 26. Another unsatisfactory feature of the story is that if all the accused lay in ambush to annihilate deceased and ten of those were accused in dacoity incident, why they will spare deceased causing him in all three injuries and only one of it being grievous. This belied forming of unlawful assembly by twenty five accused to do away with the deceased. This belied forming of unlawful assembly by twenty five accused to do away with the deceased. Learned trial Judge was also conscious of the said fact and that is why he has convicted only three of the accused for offence under Section 304 (II) I.P.C. only and not for 302 I.P.C. This fact also creates suspicion about the authenticity of the prosecution case and existence of an unlawful assembly for murdering the deceased. It is recapitulated that only one of the accused is specifically alleged to have assaulted the deceased and nobody else. In any view of the matter, at the worst, at least twenty two (22) of the accused did not share the same common object as that of rest of the three (as the deceased had sustained only three injuries) and hence existence of an unlawful assembly of twenty five (25) accused with common intention to commit murder of the deceased dissipates into other wise evidences exist on the record giving way to possessing common intention only by three of the accused, whose presence at the time of the incident is admitted, and this brings the case within the ambit of Section 34 I.P.C. and not under Section 147/148/149 I.P.C. Since there was no unlawful assembly with above object and every one of the accused did not participate in the assault, as already discussed above, therefore, taking a very cautious view, acquittal of those accused whose presence during the incident was not admitted is a reasonable approach to be adopted and we therefore find it extremely difficult to castigate the impugned judgment to be unreasonable and perverse. 27. Yet another reason which impels us to discard prosecution case is that they (PW1&2) had tried to improvise upon their versions by offering a gibberish explanation about the injuries sustained from the accused side. Only one stick (Danda), that too only of two and half(2-1/2) foot long will be impossible to be wielded only by one man as against full length clubs (lathi) and cause injuries to three aggressors and himself sustaining three contusions and an abrasion. We recall here that accused had sustained lacerated and incised wounds on their person and those injuries were neither self-inflicted nor manufactured and it is admitted to the prosecution side that they were caused during course of the assault. We recall here that accused had sustained lacerated and incised wounds on their person and those injuries were neither self-inflicted nor manufactured and it is admitted to the prosecution side that they were caused during course of the assault. Thus offered explanation of accused injuries is not only false and unacceptable but it also shows an unsuccessful attempt to cover up real genesis of the incident which is essential to determine which side was the aggressor. Accused injury reports as defence exhibits Kha1 to Kha3 established use of sharp edged weapon by the prosecution side which is not the case spelt out by fact witnesses. Here we would like to point out that the trivialities of the injuries sustained by the accused by sharp edged weapon is not the relevant aspect which has been considered by us but what has put us on guard is suppression of actual facts by both the prosecution witnesses and thereby of the genesis of the incident and prevarication in which they have indulged into. Both the fact witnesses are related, partisan, inimical and therefore we have vetted through their evidences very cautiously and carefully. No independent person had come forward to lend credence to the prosecution story and therefore only on the testimonies of interested, partisan and inimical witnesses, who have spelt out a mendacious story and have suppressed the real and actual truth, it is difficult to hold all the acquitted accused guilty. 28. Another and further reason for us to discard prosecution version is that FIR from the accused side was lodged earlier in point of time than the prosecution side, albeit time gap between both the FIRS is negligible. The conduct of the accused respondents in approaching the police first is an additional circumstance favouring them indicating that probably their defence version is correct, otherwise they could not have mustered courage to approach the police immediately after the incident had they been the aggressors. This opinion is supported by the fact that incident was motivated because the assailants wanted to gain benefit in dacoity case but for that they had assaulted and caused injury to that person who was not a witness or the informant of the dacoity incident. This opinion is supported by the fact that incident was motivated because the assailants wanted to gain benefit in dacoity case but for that they had assaulted and caused injury to that person who was not a witness or the informant of the dacoity incident. It is the categorical statement of the informant/PW1 in para 11 of his depositions that deceased was not a witness in dacoity incident nor he had seen him in Court on any of dates fixed in the trial of that offence. Thus there was no occasion for the accused to assault the deceased to avenge dacoity case and consequently immediate reason to launch an assault does not commend to us and probably the incident had occurred because of some other reason. 29. Learned amicus curie had argued that the learned trial Judge has slated good and sustainable reasons to return a verdict of acquittal against accused respondents and his analysis of evidences and conclusion derived therefrom cannot be said to be perverse or erroneous requiring interference in this appeal. On this submission we express our unhappiness over the cavalier manner in which learned trial Judge has dealt with the accused case. When we vet through the reasons slated by him to pronounce a verdict of acquittal, we find that the First aspect which had struck him was that since the village was factionally ridden therefore chances of innocent persons being implicated falsely cannot be ruled out and therefore scrutiny of evidences has to be minutely careful. Such an opinion is neither perverse nor fallacious. It is in consonance with too well-settled principles of criminal jurisprudence. Another view slated by the learned trial Judge is that it was not mentioned in the FIR that Amir Ahmad, Jamil Ahmad, and Aqil Ahmad were armed with spears. They were not specifically assigned the roles of causing any injury to the prosecution sides by their respective weapons and hence learned trial Judge held that they cannot be held to be guilty with the aid of Section 148 I.P.C. Though active participation of all the accused forming an unlawful assembly is not sine qua non to convict them but the view by the learned trial Judge cannot be held to be not reasonably possible especially considering the fact that there was factionalism in the village and both the sides were at logger heads. But for aforesaid reasons learned trial Judge has not penned down other reasons. This gave an opportunity to the learned Government Advocate to snip impugned judgment. However this aspect should not distract us as in our analysis also the ultimate conclusion arrived at by the learned trial Judge is correct and here we only recall oft quoted saying Better late than never. Learned trial Judge would have done well to be more elaborate mentioning it’s reasons in further details rather than to be concise, abridged and slipshod and we say no more. 30. Since in our examination, the final outcome of conferring benefit of doubt on surviving accused respondents is an infallible conclusion, we find no merit in this appeal against acquittal preferred by the appellant State and hence Government Appeal No. 330 of 1982, State v. Abdul Salam and others, is dismissed and acquittal of surviving accused respondents namely accused-respondent No. 2 Zamil Ahmad @ Katroo, No. 4 Abdul Salam, No. 6 Abdul Salam son of Kalloo, No. 7 Zamil @ Bahra son of Kalloo, No. 10 Rafiq Ahmad son of Habib Ahmad, No. 13 Bilayati son of Chotey, No. 14 Kalloo son of Abdul Zabbar, No. 16 Abdul Qayum son of Abdul Zabbar, No. 17 Abdul Malik, No. 18 Abdul Qayum, both sons of Abdul Aziz, No. 19 Abdul Majid son of Abdul Gaffar, No. 20 Shafiq Ahmad son of Abdul Bashir, No. 21 Taufeek @ Faqira son of Amir Ahmad and No. 22 Shafiq Ahmad @ Buddal son of Mohd. Ismail through impugned judgment and order dated 4.9.1981 passed by IVth Additional Sessions Judge, Bareilly, rendered in S.T. No. 277 of 1979, State of U.P. v. Abdul Salam and others, under Sections 147/148/149/323/324/302 I.P.C. P.S. Bhojipura, District Bareilly, are hereby affirmed. These surviving accused respondents are on bail, they need not surrender, their personal and surety bonds are canceled/discharged. Let a copy of this judgment be certified to the learned trial Court for follow up action at it’s end.