JUDGMENT Sanjay Karol, J. 1. Appellant-convict Vijender Singh, hereinafter referred to as the accused, has assailed the judgment dated 14.7.2006, passed by Sessions Judge, Solan, Camp at Nalagarh, Himachal Pradesh, in Sessions Trial No. 9-NL/7 of 2005/2003, titled as State of Himachal Pradesh vs. Satya Devi and others, whereby he stands convicted of the offence punishable under the provisions of Section 304 (second part) and sentenced to undergo rigorous imprisonment for a period of five years and pay fine of Rs. 5,000/- and in default thereof to further undergo rigorous imprisonment for a period of one year. 2. It is the case of prosecution that on 17.7.2003, when Neeta Devi (PW-1) and her sister Achhari Devi were working in their fields, accused Ratti Ram, his wife and sons, who own adjoining fields, came to cut grass from the common boundary. Neeta Devi objected to the same, but nevertheless they continued with the same. Also, Satya Devi picked up a danda and unsuccessfully tried to beat Neeta Devi. However, on her asking, accused persons, namely Ratti Ram, Vijender Singh and Ashwani Kumar gave beatings. In the meantime, Sunehru Devi, grandmother of Neeta Devi, also reached the spot. At that, all the accused persons attacked them with stones and one such stone thrown by accused Vijender Singh hit Sunehru Devi, as a result of which she sustained injuries and fell down. Hearing cries, when Man Singh (PW-2) and Ranjit Singh (PW-3) arrived on the spot, accused ran away. Sunehru Devi was taken to the hospital, first at Nalagarh, where she was examined by Dr. M.R. Verma (PW-5) and thereafter to PGI, Chandigarh, where she was examined by Dr. Rahul Gupta (PW-12). Unfortunately, Sunehru Devi succumbed to the injuries and died on 22.7.2003. In the meanwhile, ASI Prakash Chand (PW-8), Incharge of Police Post, Dabhotta reached the spot and recorded statement of Neeta Devi (Ex.PW-1/B), under the provisions of Section 154 of the Code of Criminal Procedure, on the basis of which FIR No.106/03, dated 17.7.2003 (Ex. PW-10/A), under the provisions of Sections 447, 307, 323, 506, 34 of the Indian Penal Code, was registered at Police Station, Nalagarh. SI Balbir Singh, SHO of the concerned Police Station, conducted investigation on the spot. PW-10/A), under the provisions of Sections 447, 307, 323, 506, 34 of the Indian Penal Code, was registered at Police Station, Nalagarh. SI Balbir Singh, SHO of the concerned Police Station, conducted investigation on the spot. He collected sample of the blood stained soil; took into possession two stones and a danda (Ex.P-1); got the land demarcated from Patwari Gurcharan Dass (PW-4) and took on record the demarcation report; got the postmortem of the dead body conducted from Dr. Dalbir Singh (PW-11). With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Challan was presented against four accused persons, namely Satya Devi, Vijender Singh, Ashwani Kumar and Ratti Ram. During trial, accused Ratti Ram expired. Hence, appellant-accused Vijender Singh alongwith his co-accused Satya Devi and Ashwani Kumar were charged for having committed offence punishable under the provisions of Sections 302, 447, 323, 506, all 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, prosecution examined as many as 12 witnesses and statements of the accused persons, under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which accused Vijender Singh pleaded false implication and took the following defence: “On 16-7-2003, there was a function at the house of Kuber who did not have good relations with Sunehru and Besria her husband. I was passing through the side of the house of Kuber. At that time I heard shouting coming from the house of Kuber. In the meantime Kuber came there and he started scuffling with Sunehru. Thereafter he picked up a Danda and hit her with it. She sustained in jury on the head and fell down. Thereafter, I left the place. We have been falsely implicated on account of enmity. We are innocent.” The witnesses were examined in defence. 5. Based on the testimonies of the witnesses and the material on record, trial Court convicted accused Vijender Singh of the offence, punishable under the provisions of Section 304 (second part) and sentenced him as aforesaid, but however, acquitted all the accused persons, including the accused-appellant, of the offences under Sections 302, 447, 323, 506 all read with Section 34 of the Indian Penal Code. Hence, the present appeal by accused Vijrender Singh. 6. Learned Additional Advocate General, under instructions, has clarified that no appeal either stands filed or is sought to be filed against the judgment of acquittal of the other accused persons. Also findings qua acquittal of accused Vijender Singh, with respect to other charges, are also not assailed. 7. Having heard learned counsel for the parties as also perused the record, Court is of the view that the trial Court committed great illegality and irregularity in convicting the accused-appellant in relation to offence punishable under the provisions of Section 304 (second part) of the Indian Penal Code. Trial Court erred in not completely and correctly appreciating the testimonies of the prosecution witnesses and other material on record. Reasoning adopted is perverse. 8. It is a settled principle of law that when allegedly several persons commit an offence in furtherance of common intention and all except one are acquitted, it is open to the appellate court to find out, on reappraisal of evidence whether some of the accused persons stood wrongly acquitted, although it would not interfere with such acquittal in the absence of any appeal by the State Government. The effect of such finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. (Brathi alias Sukhdev Singh vs. State of Punjab, (1991) 1 SCC 519 ). 9. For the purpose of Section 34 of the Indian Penal Code, on same set of evidence, it is not open for the Court to acquit one and convict the other. (Madan Pal vs. State of Haryana, (2006) 1 SCC (Cri.) 357). 10. On this issue, with profit, following observations of Hon’ble the Supreme Court in Anil s/o Shamrao Sute and Another vs. State of Maharashtra, (2013) 12 SCC 441 , are reproduced: “11. It is pertinent to note that learned Sessions Judge acquitted the accused of the offence punishable under Sections 147 and 148 of the IPC and observed that as per the prosecution case there were only three persons at the spot that is A1-Anil, A2-Ashok and A5-Shankar. It is pertinent to note that learned Sessions Judge acquitted the accused of the offence punishable under Sections 147 and 148 of the IPC and observed that as per the prosecution case there were only three persons at the spot that is A1-Anil, A2-Ashok and A5-Shankar. He observed that the prosecution has failed to prove that all the accused were members of the unlawful assembly and in prosecution of their common object they committed murder of the deceased. All the accused were acquitted of the offence under Section 302 read with Section 149 of the IPC. As no overt act was attributed to A4-Kishor, A5-Shankar and A6-Mayabai, he acquitted them of offence punishable under Section 302 read with Section 34 of the IPC. The appellants A1-Anil and A2-Ashok were convicted for the offence punishable under Section 302 of the IPC with the aid of Section 34 thereof. 12. Now, the question is whether the version given by PW3-Meena in the FIR that A1-Anil and A2-Ashok assaulted the deceased is to be accepted or whether the version given by her in the examination-in-chief that A1-Anil, A2-Ashok, A4-Kishor and A5-Shankar assaulted the deceased has to be accepted or whether the version given by her in the cross-examination that A1-Anil and A2-Ashok only dragged the deceased out in the courtyard along with A3- Baba and A3-Baba assaulted the deceased with others is to be accepted. When there is such a great variance in her versions, we find it risky to convict the accused on the basis of such evidence. If her version in the FIR and examination-in-chief is to be accepted, then A5-Shankar could have been convicted with the aid of Section 34 of the IPC. But, he has been acquitted. If the version given in the cross-examination that A1-Anil and A2-Ashok only dragged the deceased out and A3-Baba assaulted the deceased is to be accepted, then, it is necessary to examine whether they shared common intention with A3-Baba to commit murder of the deceased. It is possible that they did share common intention with A3- Baba. It is equally possible that they did not. If A1-Anil and A2-Ashok merely dragged the deceased and they had no intention to kill the deceased, they may be guilty of a lesser offence. It is possible that they did share common intention with A3- Baba. It is equally possible that they did not. If A1-Anil and A2-Ashok merely dragged the deceased and they had no intention to kill the deceased, they may be guilty of a lesser offence. It appears that unfortunately, this aspect was not examined properly by learned Sessions Judge because during the pendency of the case, A3- Baba was murdered and could not be tried. At this stage, in the absence of evidence, it is not possible for us to make out a new case. The prosecution case is, therefore, not free from doubt. 13. Undoubtedly, the evidence on record creates a strong suspicion about involvement of A1-Anil and A2-Ashok, but, it is not sufficient to prove their involvement in the offence of murder beyond doubt. It is well settled that suspicion, however strong, cannot take the place of proof. Clear and unimpeachable evidence is necessary to convict a person. We find that such evidence is absent in this case. The prosecution cannot rely on the evidence of discovery of weapons at the instance of A1-Anil and A2-Ashok because the panchas have turned hostile. In order to have the evidence of an independent witness on record, the prosecution examined PW-7 Shashikala, but, she turned hostile. Similarly, another witness PW-4 Ramesh Kale also turned hostile. Therefore, there is no other evidence on record which can support the prosecution case. In any case, there is no question of seeking corroboration to the evidence of PW-3 Meena because her evidence itself does not inspire confidence. It must be remembered that on the same evidence, A4-Kishor, A5-Shankar and A6- Mayabai have been acquitted. In the circumstances, we are of the opinion that benefit of doubt will have to be given to A1-Anil and A2-Ashok.” 11. In the present case, out of four accused persons, Ratti Ram expired during trial, and mother and brother of the appellant stood acquitted. 12. It is also a settled principle of law that evidence led by the prosecution has to be weighed and not counted. Test is whether evidence has a ring of truth, is cogent, credible and trustworthy. If the quality of evidence is not satisfactory, Court, in discharge of its duties, would come forward to acquit the accused. (See : Prithpal Singh and Others vs. State of Punjab and Another, (2012) 1 SCC 10 ). 13. Test is whether evidence has a ring of truth, is cogent, credible and trustworthy. If the quality of evidence is not satisfactory, Court, in discharge of its duties, would come forward to acquit the accused. (See : Prithpal Singh and Others vs. State of Punjab and Another, (2012) 1 SCC 10 ). 13. From the version of Neeta Devi, it is evidently clear that there were only three persons on the spot, i.e. the witness herself, her sister Achhari Devi and the deceased. Statement of deceased could not be recorded by the police. Deceased was first examined by Dr. M.R. Verma, (PW-5), who states that the deceased, at the time of her first examination, was semi-conscious and disoriented to space, time and place. According to the witness, lady had a history of allegedly being “hit by stones and sticks by some persons”. Significantly, she was examined by the doctor on 17.3.2003 at 8.10 p.m., by which time her attendants were aware of the identity of the assailants, yet such fact was not disclosed by them. The doctor does state that on local examination, following injuries were found on the body of the deceased: “1 There was haematoma with one c.m. lacerated would over right parietal region just above right ear with fresh bleeding. 2. Right upper and lower lids were bluish black and swollen. There was bleeding from nose and right ear. The patient was referred to P.G.I. Chandigarh for further management and advice.” With certainty, doctor could not state as to how many blows of sticks or stones were sustained by Sunehru Devi. Medical evidence renders the prosecution case of the deceased having hit by only one stone to be doubtful. 14. It has come on record that the deceased was further examined at PGI, Chandigarh, by Dr. Rahul Gupta (PW-12), who issued MLC (Ex.PW-12/A). Even in this document, there is no reference of either the assailants or the cause of injuries. Only in Court, witness states that daughter-in-law of the deceased had stated that she (deceased) was hit by stones on the head. The deceased expired on 22.7.2003. Postmortem was conducted by Dr. Dalbir Singh (Pw-11), who opined cause of death to be “oedma of brain consequent to fracture of skull, subarchnoid haemorrhage, laceration of brain parenchyma and extra cerebral haematoma following blunt force, trauma to the head.” 15. The deceased expired on 22.7.2003. Postmortem was conducted by Dr. Dalbir Singh (Pw-11), who opined cause of death to be “oedma of brain consequent to fracture of skull, subarchnoid haemorrhage, laceration of brain parenchyma and extra cerebral haematoma following blunt force, trauma to the head.” 15. Noticeably, from the testimony of Prakash Chand (PW-8), it has come on record that immediately after reaching the spot, he recorded statement of Neeta Devi (Ex. PW-1/B) at 7.15 p.m. Witness admits that at that time, apart from the family members of the deceased, villagers were also present. Significantly, it has come on record that Kuber, a nephew of the deceased, is in the Police Department. It is in this backdrop that I find the possibility of the time being wrongly recorded in Ex. PW-1/B not to be ruled out. 16. Also, except for Man Singh (PW-2), who is a neighbour of Neeta Devi, no other person from the village was associated by the Investigating Officer. It is not that none come forward or refused to be associated. We find that the incident took place at about 5.30 p.m. and yet none from the family of the deceased bothered to immediately provide medical aid to the deceased. She was kept bleeding on the spot. Why so? remains unexplained. It is not that there was any fear from the accused. For unexplained reasons, Acchari Devi has not been produced in Court. 17. Version of Neeta Devi that accused Vijender Singh threw stone, which hit the deceased on the right side, to our mind, cannot be said to be inspiring in confidence. Her version that all the accused persons attacked them with stones is also not true. Had all the four assailants thrown stones, then police would not have recovered only two stones, which in any event did not contain any blood stains of the deceased. 18. Version of PW-1 that only deceased was hit with one stone does not appear to be true, for one cannot forget that the assailants were male members and more in number. Had they pelted stones from a close distance of 5-6 feet, all the members of the complainant party would have sustained some injuries. Now, this creates doubt with regard to the genesis of the prosecution story. 19. Had they pelted stones from a close distance of 5-6 feet, all the members of the complainant party would have sustained some injuries. Now, this creates doubt with regard to the genesis of the prosecution story. 19. It has come on record through the testimony of the prosecution witnesses that the accused and the deceased were not having cordial relationship. Already there was a boundary dispute, in relation to which complaints stood lodged with the Pradhan and demarcation of the land conducted prior to the incident. 20. It has also come on record that Kuber, a close relative of the deceased, was having a function at his house on 16.7.2003. Defence of the accused that Besria had gone to attend that function, which was objected to by the deceased, prompting Kuber to beat her somewhat stands probablized by the accused. 21. Version of Man Singh that he saw the accused persons running from the spot, is a mere exaggeration. He did not see any of the accused, either pelting stones or giving blows with sticks. His testimony is only in the nature of hearsay, for according to him, hearing cries, when he ran towards the fields he saw the accused run away and after reaching the spot he was told that the accused had hit them with stones. Now, he categorically does not state that the stone with which the deceased was hit was thrown by the present accused-appellant. 22. Doubting the presence of Ranjit Singh (PW-3) on the spot, trial Court could not have relied upon his statement for convicting the accused-appellant. It is a serious error and illegality. 23. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. 24. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 14.7.2006, passed by Sessions Judge, Solan, Camp at Nalagarh, Himachal Pradesh, in Sessions Trial No.9-NL/7 of 2005/2003, titled as State of Himachal Pradesh vs. Satya Devi and others, is set aside and the accused-appellant Vajinder Singh is acquitted. Amount of fine, if deposited by the accused, be refunded to him accordingly. Appeal stands disposed of, so also pending applications, if any.