JUDGMENT Sanjay Karol, Judge (Oral) Assailing the judgment dated 16.12.2005, passed by learned Additional Sessions Judge, Fast Track Court, Shimla, District Shimla, H.P. in ST No.RBT/FTC/9-S/7 of 2005, titled as The State of Himachal Pradesh vs. Sh. Surinder Kumar and others, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 7.7.2004, Shri Mohi Ram (PW-4) lodged a complaint at Police Post, Fagu that his son Ramesh was missing. He also got his statement (Ex.PW4/A) recorded on 10.7.2004. Investigation was conducted by S.I. Raghubir Singh (PW-18). F.I.R. No.100 dated 9.7.2004 (Ex.PW6/A), under Section 364 I.P.C. was registered at Police Station, Theog. Investigating Officer recorded the statement of Shri Devi Chand (PW-1). Sachida Nand (accused No.4) was arrested by the police on the basis of suspicion. He disclosed complicity of other accused persons namely Surinder Kumar (accused No.1), Ramesh Kumar (accused No.2), Suresh Kumar (accused No.3) and Hira Singh (accused No.5), in the alleged crime. Investigation further revealed that all the accused persons, consumed alcohol, murdered Ramesh and thereafter threw his dead body in the jungle near Chharabra. Police recorded disclosure statement of accused Sachidanand (Ex.PW11/A) in the presence of independent witnesses Shri Sita Ram (PW-11), Shri Rajinder Singh (PW-12) and Shri Amar Singh (PW-13). On 10.7.2004, accused led the police to the place where they had dumped the dead body. After conducting investigation at the spot, police took into possession the dead body which was sent to the hospital for postmortem examination, which was conducted by Dr. UVI Tyajdarbarwal (PW15). Postmortem report (Ex.PW15/A) was taken into possession by the police. Investigation further revealed complicity of all the accused in the crime. On the basis of disclosure statement, police recovered blood stained clothes of the accused in the presence of independent witness Shri Dinesh (PW-17). With the completion of investigation, Challan was presented in the Court for trial. 3. The accused persons were charged for having committed offences punishable under the provisions of Sections 302 and 201, both read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as eighteen witnesses. 3. The accused persons were charged for having committed offences punishable under the provisions of Sections 302 and 201, both read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as eighteen witnesses. Statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took the defence of innocence. 5. Trial Court, after fully appreciating the testimonies of prosecution witnesses and other material placed on record, acquitted the accused persons of all the charged offences. Hence, the present appeal. 6. Having heard learned counsel for the parties on either side, we are of the considered view that no ground for interference is made out in the present appeal. 7. It is well established principle of law that (i) the appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more probable; (ii) while dealing with a judgment of acquittal, the appellate court must consider entire evidence on record, so as to arrive at a finding as to whether views of the trial court are perverse or otherwise unsustainable; (iii) the appellate court is entitled to consider whether in arriving at a finding of fact, trial Court failed to take into consideration any admissible fact; and (iv) the trial Court failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. (See: Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165 ; Allarakha K Mansuri v. State of Gujarat, (2002) 3 SCC 57 ; Raghunath v. State of Haryana, (2003) 1 SCC 398 ; State of U.P. v. Ram Veer Singh & Ors., AIR 2007 SC 3075 ; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066 ; Sambhaji Hindurao Deshmukh & Ors. v. State of Maharashtra, (2008) 11 SCC 186 ; Arulvelu & Anr. v. State, (2009) 10 SCC 206 ; Perla Somasekhara Reddy & Ors. v. State of A.P., (2009) 16 SCC 98 ; and Ram Singh alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445 ). 8. In Sheo Swaroop and Ors. v. State of Maharashtra, (2008) 11 SCC 186 ; Arulvelu & Anr. v. State, (2009) 10 SCC 206 ; Perla Somasekhara Reddy & Ors. v. State of A.P., (2009) 16 SCC 98 ; and Ram Singh alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445 ). 8. In Sheo Swaroop and Ors. v. King Emperor, AIR 1934 PC 227, the Privy Council held that: "...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...." 9. In Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415 , the apex Court observed as under: "(1) An appellate court has full power to review, re-appreciate 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. 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. (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." 10. In State of Uttar Pradesh v. Banne @ Baijnath & Ors., (2009) 4 SCC 271 , the apex Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court, which principle, in our considered view, would squarely apply to the judgment under review by us. The circumstances include; (i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) Apex Court must always give proper weight and consideration to the findings of the High Court; and (vi) the apex Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. The apex Court further held that “Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of 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 his innocence. 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 with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference.” (Emphasis supplied) 11. Significantly, there is no eye witness to the occurrence of incident. Prosecution case primarily rests upon circumstantial evidence and alleged disclosure statements made by the accused persons. Noticeably, in the instant case, none of the prosecution witnesses, in whose presence alleged disclosure statement was made or incriminating articles recovered have supported the prosecution case. Not only this, we find that brother and father of the deceased have also not come out with whole truth. 12. According to Smt. Geeta Devi (PW-3), on 3.7.2004 at about 8:00 p.m., her brother Ramesh alongwith Devi Chand (PW-1) came to her house. Sachidanand (accused No.4), gave a call to Devi Chand for taking the vegetables to the market at Dhalli. Thereafter, both Ramesh and Devi Chand left, since when deceased was untraceable. On 7.7.2004, her father, on telephone inquired about the whereabouts of Ramesh Kumar. Now significantly, in cross-examination, she qualifies her earlier version by deposing that “Devi Chand had heard the call that came from road. I do not know whose voice was that.” Hence, this witness does not disclose any complicity of the accused persons. If at all, anyone was involved in the crime, it was witness Devi Chand, for the reason that he was last seen with the accused. 13. When we come to the testimony of Mohi Chand (PW-4), we find that he denies statement (Ex.PW4/A) allegedly made by him to the police with which he was confronted. Initially, he disclosed to the police that he had suspicion on witness Devi Chand. None of the accused persons were named by him in his statement. There is nothing on record to establish that Devi Chand had disclosed complicity of the accused in the alleged crime. In fact, Devi Chand was examined as PW-1 by the prosecution. Why is it that the Investigating Officer, did not depose, totally ruling out complicity of Dev Chand in the crime. This, in our considered view, is absolutely fatal. 14. There is nothing on record to establish that Devi Chand had disclosed complicity of the accused in the alleged crime. In fact, Devi Chand was examined as PW-1 by the prosecution. Why is it that the Investigating Officer, did not depose, totally ruling out complicity of Dev Chand in the crime. This, in our considered view, is absolutely fatal. 14. Not only this, Devi Chand who was examined by the prosecution as PW-1 has not supported the prosecution case at all. He was extensively cross-examined by the Public Prosecutor, yet nothing incriminating has come out in his version even remotely showing complicity of the accused in the alleged crime. In fact, he goes to state that he was beaten several times by the police at Police Post, Fagu. He further admits that accused did not give any beatings to deceased Ramesh Kumar. It appears that confession was extracted by the police from the witnesses by using third degree method. 15. When we come to the testimony of Rakesh Sharma (PW-2), we find that even he has not supported the prosecution case at all. He denies having seen accused Suresh on the spot, in the manner in which prosecution wants us to believe. Even he states that he was kept in the Police Station for three days and was given beatings by the police. He further states that police had asked him not to disclose his illegal detention to the Magistrate which he did not do so as he was under pressure from the police. 16. Weapon of offence i.e. Danda (Ex.P-5) was allegedly recovered by the police in the presence of Sita Ram (PW-11), Rajinder Singh (PW-12) and Amar Singh (PW-13), who have also not supported the prosecution case with regard to alleged disclosure statement made by Sachidanand (accused No.4). We do not find any infirmity with the appreciation of their testimonies by the Court below. 17. Significantly, version of prosecution that deceased was murdered with a Danda (Ex.P-5) stands falsified by medical evidence. Dr. UVI Tyajdarbarwal (PW-15) categorically states that “The injury I noticed on the dead body must have been caused by instrument having more dia than Ex.P-5.” This further renders the prosecution version to be false. 17. Significantly, version of prosecution that deceased was murdered with a Danda (Ex.P-5) stands falsified by medical evidence. Dr. UVI Tyajdarbarwal (PW-15) categorically states that “The injury I noticed on the dead body must have been caused by instrument having more dia than Ex.P-5.” This further renders the prosecution version to be false. We do not find the case of prosecution that blood stained clothes of accused were recovered in the presence of Shri Dinesh (PW-17), to be true, for the reason that witness has not supported the prosecution case at all. We may also observe that in the Forensic Science Laboratory report (Ex.PW18/J), there is no mention of blood stains on the clothes of accused. 18. There is no doubt that death took place but then who committed an act of murder, has not been proved by the prosecution. Also, complicity of the accused, in the alleged crime, cannot be said to have been established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing, relevant and material piece of evidence. 19. It appears that suspicion initially arose on Shri Sita Ram (PW-11) and for some reason prosecution witness could not investigate the case in a fair manner, which has resulted into false implication of the accused persons in the alleged crime. 20. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of the trial Court is perverse, illegal and erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. 21. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredient so as to constitute the charged offences. 22. The accused person has had the advantage of having been acquitted by the lower appellate Court. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredient so as to constitute the charged offences. 22. The accused person has had the advantage of having been acquitted by the lower appellate Court. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , it cannot be said that the trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. 23. For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. 24. We may also place on record our appreciation for the efforts put in by Mr. Vikram Thakur, learned Deputy Advocate General who has rendered valuable assistance in the just decision of this case. Records of the Courts below be immediately sent back.