JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 25.3.2009, passed by the learned Addl. Sessions Judge, Fast Track Court, Kullu, Himachal Pradesh, in Sessions Trial No. 10 of 2007, titled as State of Himachal Pradesh v. Jog Raj @ Jogi & others, whereby respondents-accused stand acquitted, 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 28.4.2006 Sanjay Kumar (PW-1), Chuni Lal (PW-3) and Kehar Singh, deceased, were travelling in maruti van bearing No. HP 33- 7168, driven by Pawan Kumar (PW-9). Chuni Lal invited Sanjay Kumar and Kehar Singh to his house at Dibbar Nala. Having reached there, a mini bus belonging to the Forest Department intercepted their vehicle. Accused Jog Raj alighted from the vehicle and started pelting stones at Kehar Singh as a result of which he fell down the cliff. Thereafter, Sanjay Kumar and Pawan Kumar were taken in the van to the Forest Rest House at Haat where they were illegally confined and given beatings. However, after some time they were allowed to go away. Pawan Kumar and Chuni Lal kept on searching for Kehar Singh who was not to be found at the place where he was hit with a stone. Resultantly, complaint was lodged with the police at Police Station Kullu and SHO Sarwan Kumar (PW-19) proceeded to the spot. He recorded statement of Sanjay Kumar under Section 154 Cr. P.C. (Ext. PT) on the basis of which F.I.R. No. 191/2006, dated 29.4.2006 (Ext. PA/B), was registered at Police Station Kullu, H.P., against the accused under the provisions of Sections 147, 149, 342, 302 and 323 of the Indian Penal Code. Investigation led to recovery of body of Kehar Singh. Police also took into possession a bottle of liquor (Aristocrat) from the Forest Rest House and a handkerchief, watch and a bunch of keys from the spot. Inquest report (Ext. PX) was prepared and dead body sent for post mortem examination which was conducted by Dr. P. L. Thakur (PW-14). As per the post mortem report (Ext. PP), deceased died as a result of injuries sustained by him. Report of the State Forensic Science Laboratory, Junga (Ext. PN), where viscera was examined, revealed the deceased to have consumed alcohol. PX) was prepared and dead body sent for post mortem examination which was conducted by Dr. P. L. Thakur (PW-14). As per the post mortem report (Ext. PP), deceased died as a result of injuries sustained by him. Report of the State Forensic Science Laboratory, Junga (Ext. PN), where viscera was examined, revealed the deceased to have consumed alcohol. Investigation revealed, complicity of the accused in the alleged crime, hence challan was presented in the Court for trial. 3. Accused were charged for having committed offences punishable under the provisions of Sections 147, 304, 323 and 342 read with Section 149 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 4. In order to prove its case, in all, prosecution examined twenty witnesses and statements of the accused under Section 313 Cr. P.C. were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by the accused. 5. Court below acquitted the accused for the reason that prosecution could not prove its case, beyond reasonable doubt. Hence the present appeal. 6. We have heard Mr. Ashok Chaudhary, learned Addl. Advocate General ably assisted by Mr. V. S. Chauhan, learned Asstt. A.G. and Mr. J.S. Guleria, Asstt. A.G., on behalf of the State as also Mr. Dibender Ghosh, learned counsel for the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. 7. 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 essential ingredients so required to constitute the charged offences. 8. 7. 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 essential ingredients so required to constitute the charged offences. 8. In Prandas v. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under: "(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under Section 417, Criminal Procedure Code in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words: "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. 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." 9. There is no dispute with regard to the identity of deceased Kehar Singh. It also cannot be disputed that his dead body was recovered by the police, which fact, in any event, stands established through the testimony of Inspector Sarwan Kumar (PW-19) who categorically states that after receiving information about the death of Kehar Singh, he visited the spot, prepared inquest report (Ext. PX) and took into possession the incriminating articles as also the body vide memos (Ext. PA and Ext. PB). 10. Dr. P.L. Thakur (PW-14) who conducted the post mortem has opined the cause of death to be syncope due to haemorrhage. Post mortem report (Ext. PP) is on record to such effect. According to the Doctor the injuries sustained by the deceased on the shoulders, upper limb, chest, knee joint, shin and scalp "could have been caused with the aid of stones or by fall". Significantly the stone with which the accused assaulted the deceased has not been shown to the Doctor. So medical evidence does not rule out injuries sustained by fall, resulting into death. 11. In order to establish the prosecution case of the accused having formed an unlawful assembly with a common object of causing death of Kehar Singh, without any sudden or grave provocation and causing hurt to complainant Sanjay Kumar and Pawan Kumar and having wrongfully confined them at the Forest Rest House, prosecution refers to and relies upon the testimonies of spot witness i.e. complainant Sanjay Kumar (PW-1), Chuni Lal (PW-3), Pawan Kumar (PW-9) as also Gambhir Singh (PW-6) brother of the deceased and Sandeep Kumar (PW-17) a press reporter. Now significantly all of these witnesses have turned hostile and not supported the prosecution on material aspect. 12. Their Lordships of the Hon'ble Supreme Court in Yomeshbhai Pranshankar Bhatt v. State of Gujarat, (2011) 6 SCC 312 have held that evidence of hostile witness may contain elements of truth and should not be entirely discarded. Their Lordships have held as under: "22. The learned counsel for the appellant further submitted the doctor had not given his written opinion that the deceased was fit enough to give her statement. Their Lordships have held as under: "22. The learned counsel for the appellant further submitted the doctor had not given his written opinion that the deceased was fit enough to give her statement. Though orally, the doctor said so. Relying on this part of the evidence especially the evidence of the husband of the deceased, the learned counsel for the appellant submitted that even though the husband may have been declared hostile, the law relating to appreciation of evidence of hostile witnesses is not to completely discard the evidence given by them. This Court has held that even the evidence given by hostile witness may contain elements of truth. 23. This Court has held in State of U.P. v. Chetram and others, AIR 1989 SC 1543 , that merely because the witnesses have been declared hostile the entire evidence should not be brushed aside. [See para 13 at page 1548]. Similar view has been expressed by three-judge Bench of this Court in Khujji alias Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 . At para 6, page 1857 of the report this Court speaking through Justice Ahmadi, as His Lordship then was, after referring to various judgments of this Court laid down that just because the witness turned hostile his entire evidence should not be washed out." 13. Their Lordships of the Hon'ble Supreme Court in Bhajju alias Karan Singh v. State of Madhya Pradesh, (2012) 4 SCC 327 have held that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. Their Lordships have held as under: "36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. 37. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. 37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases: (a) Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624 (b) Prithi v. State of Haryana, (2010) 8 SCC 536 (c) Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 (d) Ramkrushna v. State of Maharashtra, (2007) 13 SCC 525 " 14. Their Lordships of the Hon'ble Supreme Court in Ramesh Harijan v. State of Uttar Pradesh, (2012) 5 SCC 777 have again reiterated that any portion of evidence consistent with case of prosecution or defence can be relied upon. Their Lordships have further held that seizure/recovery witnesses though turning hostile, but admitting their signatures/ thumb impressions on recovery memo, they could be relied on by prosecution. Their Lordships have held as under: "23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 ; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ). 24. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 ; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ). 24. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766 , this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543 ; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951 ; Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320 ; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462 . Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 )" 15. In this backdrop, we proceed to examine the ocular evidence on record. 16. Sanjay Kumar who is the complainant only states that on 28.4.2006 he along with Kehar Singh, Pawan Kumar and Chuni Lal was travelling in a maruti van and at about 10.45 p.m. when they reached Dibbar Nala, a mini bus of the Forest Department came there. Kehar Singh alighted from the van and fled away from the spot. Since it was dark, none could see the direction in which he fled. Accused Jogi Ram and Gian Singh alighted from the mini bus. Also Chuni Lal fled away from the spot. Thereafter mini bus left towards Bajaura. Well, that is all the witness states. 17. Kehar Singh alighted from the van and fled away from the spot. Since it was dark, none could see the direction in which he fled. Accused Jogi Ram and Gian Singh alighted from the mini bus. Also Chuni Lal fled away from the spot. Thereafter mini bus left towards Bajaura. Well, that is all the witness states. 17. Careful perusal of his further testimony, after being declared hostile and cross examined by the Public Prosecutor, leads to the only conclusion that the witness has not come up with the whole truth. His statement is vacillatory in nature. As such, the witness cannot be said to be worthy of credence and his version to be believable. Though he states that accused Jogi Ram gave beatings to Kehar Singh and the van was chased by the mini bus, but in the very next breath he states that out of fear of police, accused were implicated in this case and that accused did not chase Kehar Singh or Chuni Lal. He unrebuttedly clarifies that his statement recorded under Section 154 Cr. P.C. (Ext.PT) was out of fear. 18. Testimony of Chuni Lal (PW-3) is also to somewhat similar effect. No doubt he records presence of accused Jog Raj on the spot, but however, clarifies that Kehar Singh ran way after alighting from the van. The witness did not see anything else. 19. Pawan Kumar (PW-9) is a taxi driver. His version that members of the complainant party had hired his taxi is uncorroborated by any evidence. Be that as it may, he clarifies that occupants of his vehicle, that is the complainant party, had consumed liquor and he is not aware as to what transpired on the spot. 20. Most significantly, even Gambhir Singh (PW-6) brother of Kehar Singh has not supported the prosecution. According to this witness he was informed by Sanjay Kumar, Pawan Kumar and Chuni Lal that four - five persons had come to Neul Nala in a forest vehicle and Kehar Singh had fled away from the spot. He identified the dead body of his brother and accordingly informed the police. He categorically denies of being informed by the complainant party that the accused had pelted stones at Kehar Singh, which was the cause of injuries, resulting into his death. 21. He identified the dead body of his brother and accordingly informed the police. He categorically denies of being informed by the complainant party that the accused had pelted stones at Kehar Singh, which was the cause of injuries, resulting into his death. 21. Except for the ocular version of the aforesaid witnesses, there is no other evidence on record suggesting involvement of the accused in the alleged crime. The spot of crime is a lonely place inside the forest, where there are no street lights. The alleged incident took place when it was pitch dark. Identity of the accused was neither known to the complainant party from before nor was it disclosed by them at the time of the incident. Hence identification of the accused is itself in doubt. 22. Undisputedly the deceased had consumed liquor and even according to the Doctor the injuries could have been sustained as a result of fall. The dead body was recovered from the cliff below the road. As such, possibility of the deceased, in an inebriated condition, falling down the cliff, cannot be ruled out. The blood stained sample of the soil, collected by the investigating agencies, also does not link the accused to the crime. 23. It appears that the incident had attracted attention of the media and as such villagers had protested. The incident of protest was telecast on news channel pursuant to a CD prepared by Sandeep Kumar (PW-17). But even this witness has not supported the prosecution. According to Sandeep Kumar he was informed about the incident by the villagers whose names he does not remember. Electronic evidence in the form of CD and DVC also does not establish complicity of the accused in the alleged crime. 24. But even this witness has not supported the prosecution. According to Sandeep Kumar he was informed about the incident by the villagers whose names he does not remember. Electronic evidence in the form of CD and DVC also does not establish complicity of the accused in the alleged crime. 24. Having perused the testimony of the prosecution witnesses on record it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that accused had formed an unlawful assembly and in pursuance of common object of such assembly, that is to cause death of Kehar Singh, committed the offence of rioting and also committed culpable homicide not amounting to murder with an intention of causing his death by pelting stones on his person without any sudden or grave provocation and also voluntarily caused hurt to Sanjay Kumar and Pawan Kumar and wrongfully confined both of them at the Forest Rest House, by leading clear, cogent, convincing and reliable material on record. 25. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. Prosecution witnesses cannot be said to be inspiring in confidence or worthy of credence. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. 26. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94 , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.