JUDGMENT 1. - This appeal is filed by the State of Rajasthan against the judgment dated 29.3.1996 passed by learned Additional Sessions Judge No. 2, Udaipur whereby respondents Shanker and Gota were acquitted of the charges under Sections 302, 304/34 and 342 IPC. In nutshell, the case of the prosecution is that on 11th July, 1994 at 2.30 p.m., PW-2 Velu wife of Mega Dangi made an oral complaint before Shambhu Singh A.S.I. P.S. Salumber (PW 16) that a day before in evening, after sunset, her son Dalla was going to bring oxes which were in the beed. 2. After crossing Magri, he shouted "mare re mare re". Upon his shouting, she reached the site and saw that Shanker, Heera and Gota Meena had caught hold of her son and they were giving him beatings by stick. On asking her to stop, all the three warned her to go. Due to fear of beating, she moved a little and remained still. Thereafter, all the three caught her son and took him to the agricultural Held of Shankariya Meena, she too followed and then, stood nearby. All the three persons untied dhoti of Dala and tied the hands of Dala by his Dhoti. Thereafter he was tied with a "khunta". Gota put the cloth in the mouth of Dala. Shanker inflicted 2-3 injuries on the head of Dala by Koont from its sharpened side. She cried for help but since it was night, therefore, none came there. Due to fear, she wept whole night in her home. In the morning she saw that blood was oozing from the head of Dalla and the Dala had died. Thereafter, she went to Methudi and narrated the whole story to Ex-Sarpanch Nathu Lal and returned to her house. As there was a dispute regarding land and fencing, due to which all the three had murdered Dalla. 3. A.S.I. Shri Shambhu Singh PW-16 reduced the above report into writing as Ex. P/15 and sent the same with Tej Singh Constable at P.S. Salumber for registering the formal F.I.R. As it was disclosing offence punishable under Section 302/34 IPC, an FIR No. 152/94 for offence under Section 302/34 IPC was registered at Police Station, Salumber and investigation was started. 4. During investigation, the photographs of place of occurrence were taken, statements of witnesses were recorded and site inspection memo was also prepared. 4. During investigation, the photographs of place of occurrence were taken, statements of witnesses were recorded and site inspection memo was also prepared. Accused Shanker and Gota were arrested and weapons of offence i.e. stick and koont were recovered in pursuance of information furnished by accused Shanker. Revenue record was taken on record. The dead body of Dala was examined, blood stained dhoti and blood stained soil were also taken in possession. 5. After investigation, charge-sheet under Section 302/34, 342 IPC was submitted against accused Shanker and Gota in the Court of Additional Chief Judicial Magistrate Salumber on 6.10.1994. 6. After compliance of the provisions envisaged under Section 207 of Cr.P.C., learned Magistrate committed the case to Sessions Judge Udaipur vide its order dated 6-10.94. Thereafter learned Sessions Judge Udaipur, vide its order dated 20th October, 1994, transferred it to additional Sessions Judge No. 2, Udaipur. 7. Learned Additional Sessions Judge No. 2, Udaipur, after hearing the Additional Public Prosecutor and learned counsel for accused framed charges under Sections 342, 302/34 IPC against the accused Shanker and Gota, for which, they denied and claimed for trial. 8. To substantiate the charges, prosecution examined as many as 18 witnesses. Thereafter, statements of accused under Section 313 Cr.P.C. were recorded wherein accused Shanker and Gota stated that incriminating statements deposed by prosecution witnesses against them were false and further stated that they were innocent. They did not prefer to adduce any evidence in their defence. 9. Learned trial Court, after hearing the Additional Public Prosecutor and learned counsel for accused acquitted the accused, Shanker and Gota, for offences under Sections 342, 302 or 302/34 IPC vide impugned judgment dated 29th March, 1996. 10. Feeling dissatisfied with the impugned judgment of acquittal appellant State of Rajasthan has preferred this appeal. 11. Learned Public Prosecutor for State of Rajasthan Shri K.R. Bishnoi submitted that PW 2 (complainant) Smt. Velu supported the prosecution case and clearly stated that accused Gota and Shanker murdered her son. He further submitted that Smt. Velu is a widow and a helpless lady, so, she could not file the FIR in night. As such, delay in filing FIR is satisfactorily explained. He further stated that learned trial Court has wrongly disbelieved the statements of Velu PW 2. He further submitted that Smt. Velu is a widow and a helpless lady, so, she could not file the FIR in night. As such, delay in filing FIR is satisfactorily explained. He further stated that learned trial Court has wrongly disbelieved the statements of Velu PW 2. It is very well proved that deceased was tied by dhoti and piece of dhoti was also put in his mouth and was given beatings by koont and stick, which resulted in death of the deceased. He further submitted that PW 2 Velu has categorically corroborated the facts mentioned in FIR. He further stated that there are independent witnesses and they have categorically stated in their statements that accused persons killed Dala. As such, the case of murder under Section 302 has been fully established against the accused persons, yet the learned trial Court on its own surmises extended the benefit of doubt which is against the law and facts available on record. He further submitted that state appeal may be allowed and accused persons may be punished according to law. 12. Per contra, Shri S.S. Rathore, on behalf of respondents submitted that there is no independent witness and no explanation of delay in lodging FIR. The conduct of PW 2 Velu is totally unnatural and is not believable. He supported the impugned judgment and submitted that the appeal of State of Rajasthan is groundless which may be dismissed. 13. Heard learned Public Prosecutor and learned counsel for respondents accused and perused the impugned judgment and trial Court record. 14. To decide the issue raised by the respective counsel, a brief synopsis of evidence on record as led by the prosecution may be apposite. 15. PW-1 Devi Lal, has proved the rough site plan Ex. P/1 and stated that it was prepared by police in his presence. He further submitted that police inspected the dead body of Dala and prepared Panchayatnama Ex. P/3. He further stated that Police took in possession the dhoti, baniyan and blood stained soil vide Ex. P/4, P/5 and P/6. He further stated that the control soil was also taken in possession by Police vide Ex. P/7 and the dead body of Dala was handed over to his mother Velu vide Ex. P/8, stick and koont were recovered by the Police vide Ex. P/9. P/4, P/5 and P/6. He further stated that the control soil was also taken in possession by Police vide Ex. P/7 and the dead body of Dala was handed over to his mother Velu vide Ex. P/8, stick and koont were recovered by the Police vide Ex. P/9. He identified the dhoti as article No. 1 and blood stained stick article No. 2 which were recovered at the instance of accused Shanker. Police also prepared the inquest report of dead body of Dala. He also identified koont as Article No. 3, baniyan with blood stains as Article No. 5, control soil article No. 6. 16. PW-2 Smt. Velu, mother of deceased Dala stated that in evening, after sunset, her son Dalla was going to bring oxes which were there in the beed. After crossing Magri, he shouted "mare re mare re". On hearing his shouting she reached there and saw that Shanker had caught hold of her son Dala, Heera and Gota Meena were giving beatings by stick to Dala. On being asked to stop, all three threatened her to go. Due to fear of being beaten, she moved a little and remained still. Thereafter, all the three caught hold of her son and took him to the agricultural field of Shankariya Meena, she too followed and stood nearby. All the three persons untied the dhoti of Dala and tied the hands of Dala by the Dhoti, thereafter he was tied with a "Khunta" and Gota put a piece of cloth in the mouth of Dala, Heera and Shanker both caught hold of the legs of Dala. Shanker inflicted 2-3 injuries on the head of Dala by Koont from it's sharpened side. She cried for help but since it was night therefore none came there. Due to fear, she wept whole night in her house. In morning, she saw that blood was oozing from the head of Dalla and that he had died. Thereafter, she went to Methudi and narrated the whole story to Ex-Sarpanch Nathu Lal and returned to her house. As there was a dispute regarding land and fencing, due to which all the three had murdered Dala. In her cross-examination she stated that she informed Police in night and thereafter came to the spot. Thereafter, she went to Methudi and narrated the whole story to Ex-Sarpanch Nathu Lal and returned to her house. As there was a dispute regarding land and fencing, due to which all the three had murdered Dala. In her cross-examination she stated that she informed Police in night and thereafter came to the spot. She further admitted that she did not tell any person in the village regarding the incident in the night and also admitted that she did not cry in the night as she went to Methudi. 17. PW-3 Smt. Punji, stated that Dala came on Magri to bring his oxes where they started hot talks, which she heard at her resident as Shanker told "Heera, Gota dorr". She herself was watching standing on Magri that Shanker, Dala etc. were crying and after some darkness she heard lathi beating sound, these all three were giving beating by lathi to Dalla, Velu was also crying as she was standing near the place of incident. Thereafter, Shanker and Gota shifted Dala to their oady where they tied Dala by dhoti with oady after that she did not hear the cry of Dala. Dala died below the oady due to beating given by Shanker and Gota. In cross-examination she stated that her house is about 200 feets away from oady and there are trees and plants in between oady and her house and it was cloudy and rainy night so moon was not visible. She further stated that due to dark rainy night, she could not see the incident. 18. PW-4 Khema, stated that there was dispute between Shanker, Gota, Heera and Dala regarding fencing. On 10th July, 1994 he was not at home, next morning when he returned, he saw that Dala was lying dead in the agricultural field of Shanker and Gota. This witness turned hostile and didn't support the prosecution case. 19. PW-5 Megha, stated that his house is about 200 feets away From the agricultural field of accused persons. He further stated that he saw that Shanker was having koont in his hand and Gota was having stick and Heera was armed with axe. All these three were giving beatings to Dala. 19. PW-5 Megha, stated that his house is about 200 feets away From the agricultural field of accused persons. He further stated that he saw that Shanker was having koont in his hand and Gota was having stick and Heera was armed with axe. All these three were giving beatings to Dala. He identified the persons in Court during trial and stated that Heera is not present in the Court but he saw also there and was giving beating and also stated that initially the beating was given on Magri thereafter accused shifted Dala to oady of Shanker where they tied the upper and lower limbs of Dala with oady and piece of cloth was put in the mouth of Dala. Shanker shouted that his one ox was taken away by the thieves and he caught hold of a thief and at that time when the beatings were given to Dala her mother was also standing inside the field and was crying, accused also gave beatings to her, but none reached there even after hue and cry of Velu. He further stated that there is dispute regarding fencing. In cross-examination he admitted that at the time of incident he was at his house and did not go to intervene. He also admitted that due rainy, cloudy and dark night nothing was visible. 20. PW-6 - Sava, stated that there was Panchayat between Shanker, Gota and Dala regarding the loan dispute of Dala. 21. PW-7 - Jeetmal stated that there was dispute between Dala, Shanker, Gota and Heera for which he intervened. After death of Dala, he went on spot he saw that both hands were tied up and Dala was lying dead and there were injuries of stick on the body of Dala, he also proved Ex. P/3 Panchnama. In cross-examination he admitted that the mouth of Dala was empty. 22. PW-9 - Dunga, stated that the agricultural land of Dala and accused persons were adjoining and there was dispute regarding fencing of land between them. He further stated that two little shepherd informed him that Dala is lying dead, on hearing this, he went there and saw that hands and legs of Dala were tied with the oady, a cot was lying near the body of Dala and sharp injuries were inflicted on the back side of head and near ear wherefrom blood was oozing. 23. 23. PW-10 - Madan Lal, Malkhana Incharge, stated that on 11th July, 1994. Shambhu Singh S.I. Deposited four seized packets in Malkhana, thereafter, on 15th July, 1994 Moolchand S.H.O. deposited one koont and one stick in sealed condition in Malkhana which were handed over to Thawarchand Constable for depositing in F.S.L. Thawarchand after depositing the same in F.S.L. Jaipur, handed over him receipt (Ex. 14) on 27th July, 1994. 24. PW-11 - Thawarchand, stated that after receiving four packets from malkhana incharge on 25th July, 1994 he sought forwarding letter from S.P. Office Udaipur, thereafter deposited the articles marked as A, B, C, D at F.S.L. Jaipur on 27th July, 1994 against receipt Ex. 14. 25. PW-12 - Rooplal Patwari, stated regarding the revenue record and, further stated that the agricultural land of the accused and complainant were adjoining to each other and the same were divided by fencing. 26. PW-13 - Dr. G.L. Gupta, who conducted the post mortem of deceased Dala and prepared post mortem report Ex. P/19 stated that he found following injuries on Dala:- (1) Incised (chop) would 4 x 1 x 2.5 c.m. on neck, left side below mastoid process (2) Incised (chop) would 4 x 5 x 1 c.m. on scalp, left temporal region (3) Incised would 4 x 3 x 3 c.m. on left cheek (4) Abrasions and contusions (twenty in number) of different size on back. Injury No. 1, 2 and 3 were caused by sharp edged weapon and 4 was from blunt weapon which was simple in nature while injury 1 and 2 were fractured injuries. In internal examination, he found that (1) Scalp breaked from left side and there was Haematoma of size 12 x 9 c.m. in temporal region. He opined that the cause of death was 'blood loss' by cutting of carotid artery and veins of left side. 27. PW-14 - Moolchand Bishnoi, Investigating Officer has stated regarding Investigation and stated during investigation he arrested accused Shanker and Gota vide arrest memo Ex. P/8 and Ex. P/9 and accused Shanker gave him information Ex. P/22 regarding recovery of kunt and stick which were recovered vide memo Ex. P/9. (Ex. P/9 is marked double) He admitted that the place where from koont and stick were recovered in pursuance of information furnished by accused Shanker was easily accessible place. 28. P/8 and Ex. P/9 and accused Shanker gave him information Ex. P/22 regarding recovery of kunt and stick which were recovered vide memo Ex. P/9. (Ex. P/9 is marked double) He admitted that the place where from koont and stick were recovered in pursuance of information furnished by accused Shanker was easily accessible place. 28. PW-15 - Jai Narayan Yadav, Head Constable stated that on 11th July, 1994 about 6.15 p.m. Constable Tej Singh submitted a written report, written by Shambhu Singh A.S.I. on which he registered F.I.R. EX. D/1. Bearing No. 152/94 under Section 302/34 IPC. 29. PW-16 - Shambhu Singh, A.S.I. Stated that on 11th July, 1994, he received a telephonic call regarding murder at Barabor, on this information, he went at spot Barabor where Smt. Velu mother of deceased Dala gave oral information which was reduced in writing as Ex. D/1 and was sent at P.S. Salumber for registering case, on which, F.I.R. No. 152/94 was registered. He also stated that he prepared inquest report Ex. P/3 and there were injuries on the body of Dala. He took in possession dhoti article one belonging to Dalla. Further stated that his hands and legs were tied by dhoti, a blood stained baniyan was taken in possession vide Ex. P/5 and also took in possession blood stained and control soil and the dead body was handed over to the mother of the deceased. He also prepared site plan Ex. P/2 and site inspection memo. Ex. P/1. 30. PW-17 - Nathu Lal, stated that on 11th July, 1994 Velu came to his house at 8-9 a.m. and told that 2-3 persons Shanker, Heera and Gota took away her son. On hearing it, he reached on spot by his motor cycle and found that police was there and dead body of Dala was lying in the field of accused. There was one oady and Dala's hands and legs were tied with oady. Police prepared inquest report and investigated the matter. 31. CW-1 Jeevan Singh Rathore, stated that he took the photographs Ex. C/1 to C8 of a dead person, the negatives of that are Ex. C9 to C 16, he further stated that the photographs were taken in pursuance of request made by S.H.O. of P.S. Salumber. 32. Police prepared inquest report and investigated the matter. 31. CW-1 Jeevan Singh Rathore, stated that he took the photographs Ex. C/1 to C8 of a dead person, the negatives of that are Ex. C9 to C 16, he further stated that the photographs were taken in pursuance of request made by S.H.O. of P.S. Salumber. 32. The principles which govern and regulate the hearing of Appeal by High Court, against an order of acquittal passed by the trial Court are well settled by a catena of judgments of the Apex Court. 33. Relying on 'Ajit Savant Majagvai v. State of Karnataka', (1997) 7 SCC 110 , the Apex Court in 'Prem Kanwar v. State of Rajasthan', (2009) 3 SCC 726 : 2009 (2) RLW 1714 (SC) ', reiterated the principles which must be kept in mind while hearing an appeal against acquittal. These are:- (i) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. (ii) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse. (iii) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal. (iv) In reversing the find of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order by the of acquittal passed in his favour by the trial Court. (v) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours of accused should be adopted. (v) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours of accused should be adopted. (vi) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanor of witnesses and observing their conduct in the court especially in the witness box. (vii) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt as to the guilt of the accused. 34. In this backdrop, let us examine the arguments advanced by the learned Public Prosecutor for the appellant state against the impugned judgment of acquittal and arguments advanced by the learned counsel for respondent. 35. So far as the statement of PW 3 Smt. Punji is concerned, she stated in her statements that Smt. Velu was crying standing at the spot and she heard (PW 3 Punji) the sound of lathi beating and did not hear any sound of cry of Dala. While PW 5 Megha in Police statement Ex. D/2 deposed that he was eyewitness of the quarrel. While in his police statement be stated that he didn't go near the spot due to darkness and he did not know as who gave beatings. Though PW 3 Smt. Punji and PW 5 Megha claim themselves as eye-witnesses but their names do not find any mention in the report Ex. D/1. If Smt. Punji and Megha had seen the incident then they must have been seen by Velu PW 2 and their names would have been shown as eye-witnesses in report Ex. P/1. Further PW 2 Velu clearly stated that in Ex. P/1 report that none had witnesses the incident. In view of specific version of PW 2 Velu, the statements of PW 3 Smt. Punji and PW 5 Megha cannot be believed. Further, even after hearing the lathi beatings and cry of Velu and Dala, these witnesses (PW 3 Smt. Punji and PW 5 Megha) remained in their house, that too, in a very small village is not only unnatural but also unbelievable. Further, even after hearing the lathi beatings and cry of Velu and Dala, these witnesses (PW 3 Smt. Punji and PW 5 Megha) remained in their house, that too, in a very small village is not only unnatural but also unbelievable. Further being cloudy, rainy and dark night it was not possible to hear and see the incident from their respective houses. Learned trial Court also disbelieved their statements on these factors. Now remains only one witness PW-2 Smt. Velu, she in her police statement D1 stated that she cried "mare re mare" on spot but due to night none came there and thereafter she keep weeping the whole night in her house, while in her court statement she stated that in night she went to police station thereafter police came there. Her version is, therefore, contradictory. 36. From the statements of PW-3 and PW-5 it reveals that their houses are about 200 feet from the place of incident. A son being beaten by the accused persons in the presence of his mother, and the mother kept on weeping in her house the whole night without trying to seek help of the neighbors and not telling about the incident the whole night is against the general human nature. This behaviour of PW 2 Velu is unbelievable and her such statements in such circumstances cannot be believed. 37. Learned trial Court also did not believe the statements of PW 2 Velu on above grounds as such the findings of learned Court below cannot be said to be perverse or illegal. 38. As stated earlier, the statements of PW 3 Smt. Punji, PW 5 Megha and PW 2 Smt. Velu were not found convincing. Moreover, as observed by the learned trial Court, it is not believable that PW 2 and PW 3 and PW 5 had witnesses the incident, and their conduct was found unnatural. 39. There was dispute regarding fencing of land between deceased Dala and accused persons so it cannot be ruled out that due to that enmity, the accused persons were implicated in this case. Further, incident took place at 8 p.m. on 10th July, 1994 while the F.I.R. Ex. P/16 was lodged at 6.15 p.m., on 11th July, 1994 and no explanation for causing such delay in lodging FIR is available on record. Further, incident took place at 8 p.m. on 10th July, 1994 while the F.I.R. Ex. P/16 was lodged at 6.15 p.m., on 11th July, 1994 and no explanation for causing such delay in lodging FIR is available on record. If PW 2 Velu, PW 3 - Smt. Punji and PW 5 - Megha would have witnesses the incident, then there was no reason for such a delay in lodging the F.I.R. This fact also weakens the prosecution case. 40. Considering the above facts and circumstances, learned trial Court has rightly concluded that the prosecution had failed to establish its case beyond shadow of reasonable doubt. In view of the judgment of the Supreme Court in Prem Kanwar (supra), even if two views are possible, then this Court would not interfere in an order of acquittal. In the circumstances, discussed above, this court is not persuaded to interfere in order of acquittal passed by the learned trial Court. 41. In the totality of circumstances, we are satisfied that the view taken by the learned trial Court is a possible view, and no such circumstances are made out so as to warrant interference in the finding leading to acquittal of the accused respondent. Consequently, the appeal fails, and is, therefore, dismissed.Appeal dismissed. *******