JUDGMENT : B.N. Karia, J. 1. Being aggrieved and dissatisfied by the judgment dated 1st October 2005 delivered in Sessions Case No. 64 of 2004 by the learned Presiding Officer, Fast Track Court, Gondal, the State of Gujarat has filed this Appeal under Section 378[1] & [3] of the Code of Criminal Procedure against the order of acquittal of the respondents-accused. 2. The facts giving rise to the present appeal, in a nutshell are as under:- Complainant-Chhaganbhai, a resident of village Sultanpur was informed at 7:00 am on 4th April 2004 by his nephew-Anil that his father Bavchandbhai [i.e., the real brother of the complainant] was killed by someone and his dead body was lying in the field. The complainant and one Kanubhai Arjanbhai alongwith Anil went to the field of the deceased and found the dead body of Shri Bavchandbhai. They noticed injuries on the dead body and Anil informed the complainant that the deceased had left the home yesterday, after taking dinner at about 10:00 pm. According to the complainant, some unknown person has killed his brother by causing several injuries to him, and therefore, a complaint came to be filed for the alleged offence under sections 302, 325, 201of the Indian Penal Code ["IPC" for brevity] read with sections 37[1] and 135 of the Bombay Police Act on 4th April 2004 before the Gondal Taluka Police Station. The police investigated the matter and a chargesheet was laid before the learned JMFC, Gondal and numbered it as Criminal Case No. 1018 of 2004. The learned JMFC, Gondal thereafter committed the case under Section 209 of the Code of Criminal Procedure ["CrPC" for short] to the Sessions Court at Rajkot where it was numbered as Sessions Case No. 64 of 2004. The trial was conducted by the learned Presiding Officer, Fast Track Court, Gondal. At trial, the respondents pleaded not guilty and claimed to be tried. The learned Fast Track Judge, Gondal after duly appreciating the prosecution evidence brought on the record, acquitted the accused, giving rise to filing of the present Appeal by the State of Gujarat. 3. Heard learned APP Mr. Rutvij Oza for the appellant-State of Gujarat. At trial, the respondents pleaded not guilty and claimed to be tried. The learned Fast Track Judge, Gondal after duly appreciating the prosecution evidence brought on the record, acquitted the accused, giving rise to filing of the present Appeal by the State of Gujarat. 3. Heard learned APP Mr. Rutvij Oza for the appellant-State of Gujarat. It is urged by the learned APP that the order of acquittal passed by the learned Fast Track Judge, Gondal in Sessions Case No. 64 of 2004 dated 1st October 2005 is bad in law and against the settled principles of evidence available on the record of the case. That, the oral evidence as well as documentary evidence produced by the prosecution were not properly appreciated by the learned Presiding Officer. In fact, the prosecution has proved its case beyond reasonable doubt and that the learned Presiding Officer has given much importance to minor contradictions and omissions which has resulted into miscarriage of justice. That, the learned trial Judge ought to have held that the prosecution has proved its case by chain of circumstantial evidence. He urged that though motive to commit the crime was established by the prosecution by producing the evidence of one Ramaben Bhavchandbhai and her son Anil Bhavchandbhai, as well as evidence of two daughters-Reenaben and Vilasben, the trial Judge has erred in disbelieving the prosecution case with regard to motive only on the ground that the witnesses have not deposed this fact earlier in point of time when their statement came to be recorded on 4th April 2004 and it was only on 8th April 2004 in further statement that this fact was stated. According to the learned APP, the learned Presiding Officer ought to have appreciated the fact that the prosecution has proved by evidence of witness Hareshbhai Prabhudas [PW-13 : Exh. 36] that the accused was seen on the night of incident going towards his field. He urged that the learned trial Judge ought to have appreciated that the prosecution has proved that the accused was coming towards village from field on the early morning by the evidence of one Chandulal Mohanlal [PW-14 : Exh. 37]. That, the FSL report clearly indicates that the accused clothes were blood stained and it belonged to same blood group as that of the deceased, and therefore, the order of acquittal is erroneous, improper and illegal. 37]. That, the FSL report clearly indicates that the accused clothes were blood stained and it belonged to same blood group as that of the deceased, and therefore, the order of acquittal is erroneous, improper and illegal. Ultimately, learned APP requested the Court to quash and set aside the impugned judgment and order of acquittal dated 1st October 2005 passed by the learned Fast Track Court, Gondal in Sessions Case No. 64 of 2004. 4. We have perused the documentary and oral evidence on record and gone through the submissions of both - the learned APP appearing for appellant-State as well as learned advocate appearing for the respondent-accused. Before discussing the issue involved in this Criminal Appeal preferred by the State, this Court would like to refer to the legal position as enunciated by the Apex Court in case of Shivaji Sahabrao Bobade v. State of Maharashtra [1973] 2 SCC 793, wherein, it is held that, "..Though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial Court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as tow either the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence." 5. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence." 5. In another decision rendered in case of Mahadeo Laxman Sarane v. State of Maharashtra, [2007] 12 SCC 705, the Apex Court held and observed that, "..It is true, the settled legal position is that in an appeal against acquittal the High Court ought not to interfere with the order of acquittal, if on the basis of the same evidence two views are reasonably possible - one in favour of the accused and the other against him. In such a case if the trial court takes a view in favour of the accused, the High Court ought not to interfere with the order of acquittal. However, if the judgment of acquittal is per verse or highly unreasonable or the trial court records a finding of acquittal on the basis of irrelevant or inadmissible evidence, the High Court, if it reaches a conclusion that on the evidence on record it is not reasonably possible to take another view, it may be justified in setting aside the order of acquittal." 6. Prosecution with a view to prove its case against the accused of the charges levelled against him, examined in all 21 witnesses and brought 28 documents in respect of its case. Anil, son of the deceased-Bhavchandbhai was examined as PW-3 at Exh. 12. Daughters viz., Reenaben and Vilasben were examined as PW-19 & 20 at Exhs. 51 & 52 respectively. Wife of the deceased-Ramaben was examined as PW-2 Exh. 11. It appears from their evidence that none of the witnesses were present at the time of the offence. The cause and reason of committing murder by the accused of the deceased Bhavchandbhai is one vigha land which was cultivated by the deceased. As per the prosecution story, additional land of one vigha which has not come to the share of the deceased was cultivated by him and the accused demanded the same from the deceased, but it was refused by him saying that when partition was made in presence of their elders, it came to his share, and therefore, the present accused was annoyed and committed murder of his real brother deceased-Bhavchandbhai. Both these brothers and their another brother were staying separate. Ramaben, widow of deceased Bhavchandbhai, in her deposition as PW-2 : Exh. Both these brothers and their another brother were staying separate. Ramaben, widow of deceased Bhavchandbhai, in her deposition as PW-2 : Exh. 11 has stated that her husband was passing his nights in his field [vadi]. On the day of incident, her husband was at vadi. She herself and her daughter Vilasben in company of his son Anil visited the vadi at 7:00 pm where they found deed body of her husband having head injuries and injuries to his both the hands. She further has stated that three days prior to the date of incident, accused came to their house, at that time, the deceased demanded one vigha of land which was denied by him, and therefore, the deceased insisted that it was his land and he was demanding the land from the accused. The accused left the residence of the witness saying that there was end of relation between them. As per the statement of the wife of the deceased, there was a dispute between two brothers-deceased and accused in respect of one vigha of land. Weapon was taken by the accused and therefore doubt was created by her that the accused must have committed the murder of her husband. She has identified clothes of her husband before the Court. The same theory is support by son Anil who was examined as PW-3 at Exh. 12 when he visited vadi accompanied by his mother and sister Vilasben, he found dead body of his father lying. On the instructions issued to him, he went to call his uncle, and thereafter, he returned back with his Uncle named Chhaganbhai. He has also stated that some three to four days prior to the date of incident, accused came to his house and said that upon to what period the deceased would continue to cultivate one vigha of land. The accused demanded one Vigha of land to return him at that time, the deceased informed him that it had come to his share, and therefore, why he should return it back particularly when it was granted in presence of elders. The accused got annoyed and left the house. He has also supported the theory of the prosecution that the incident had occurred due to the land admeasuring 1 vigha. It is pertinent to note that the cause of incident is described by the mother and the son in their deposition before the Court. The accused got annoyed and left the house. He has also supported the theory of the prosecution that the incident had occurred due to the land admeasuring 1 vigha. It is pertinent to note that the cause of incident is described by the mother and the son in their deposition before the Court. Daughters-Reenaben [PW-19 : Exh. 51] and Vilasben [PW-20 : Exh. 52] have also supported the same theory. It appears that the statement of these four witnesses were recorded initially by the police on 4th April 2004 and again on 8th April 2004. Complaint is produced at Exh. 7 on the record. In the first statement of these witnesses recorded on 4th April 2004, they have not stated before the Police raising any doubt against the accused involving him in the offence alleged or visiting the house of the deceased before three days of the incident and a quarrel with the deceased in respect of one vigha of the land. It transpires that in the second statement recorded on 8th April 2004, this fact was declared by these witnesses. If, in fact, any dispute in respect of land of 1 vigha was in existence and there was any doubt against the accused committing murder of the deceased, they must have declared it before the Police prior in point of time, but it appears that after four days of their first statement, they have pointed finger against the accused, and therefore, there is a reason to believe that whatever the dispute and doubt created by all these four witnesses was fabricated later on by them. Mere raising a finger of involvement of the accused in the crime alleged may not be sufficient to prove the guilt of the accused in the offence alleged. Of course, the prosecution has tried to examine two independent witnesses to establish the guilt of the accused. Chandubhai Mohanbhai and Haresh Prabhudas were examined as PW-14 at Exh. 37 and PW-13 at Exh. 36 respectively. As per the statement of Chandubhai Mohanbhai [PW-14 : Exh. 37] when he was going to Derdi from Sultanpur by driving his rickshaw in the early morning at 4:00 am, the accused was returning from his Vadi, but there was no discussion or meeting with the accused with this witness. 37 and PW-13 at Exh. 36 respectively. As per the statement of Chandubhai Mohanbhai [PW-14 : Exh. 37] when he was going to Derdi from Sultanpur by driving his rickshaw in the early morning at 4:00 am, the accused was returning from his Vadi, but there was no discussion or meeting with the accused with this witness. PW-13 Haresh Prabhudas has stated in his deposition that on 3rd April 2004 at about 11:00 p.m. when he went for a natural call, the accused met him with a Kodari and he was proceeding towards his Vadi. Thereafter, he came to know that there was a murder of Bhavchandbhai. He further stated that after eight to ten days, Police approached him and his statement was recorded. Prosecution has certainly tried to produced the evidence of the last seen together by examining these two witnesses, but there is no evidence that deceased Bhavchandbhai and accused Vajubhai Shambhubhai were going together, or were seen together by any of these two independent witnesses. From the cross examination, it appears that on 4th April 2004 at about 7:00 am he came to know that murder of Bhavchandbhai was committed, but this witness never approached the Police upto 16th March 2004 or no information was given to anybody. The evidence led by these two independent witnesses would not support the prosecution or link the accused with the crime alleged by him. Panch-witnesses Ravisinh Umarsinh [PW-11 : Exh. 30] and Bakulbhai Deepsinh Chudasama [PW-15 : Exh. 38] in their deposition have not supported the discovery panchnama drawn and placed at Exh. 31, which is in connection with discovery of weapon-Kodari. Both these witnesses were declared hostile by the prosecution. Another PW-4 : Kanubhai Arjanbhai is examined at Exh. 13 and PW-12-Ravjibhai Velabhai is examined at Exh. 35. From their evidence also, the accused cannot be connected with the offence and the charges levelled by the prosecution involving him in the offence alleged. Witness-Chhaganbhai Shambubhai [PW-1 : Exh. 6] is the complainant and real brother of the deceased. He was informed by witness-Anil, the son of the deceased that his father was killed and his dead body was lying in Vadi and as his request, both of them visited Vadi where Bhavchandbhai's dead body was lying. He lodged a complaint before the Police wherein he has not named the accused, nor expressed any doubt against him or anybody else. He lodged a complaint before the Police wherein he has not named the accused, nor expressed any doubt against him or anybody else. In the further statement, the complainant doubt was disclosed against the accused, but in the evidence produced before the Court, this witness has not supported the statement recorded in his further statement. He, however, completely denied his further statement. This witness was also declared hostile by the prosecution. The Investigating Officer was examined at Exh. 56. He tried to support the prosecution case but it is difficult and not advisable to rely only on the sole evidence of the Investigating Officer to involve the accused in the offence. Dr. Sanjaykumar Raghunandprasad Sinha [PW-16 : Exh. 40] has performed postmortem of the deceased. Injuries caused to the deceased were identified and supported by this witnesses. The injuries caused to the deceased were also possible by the weapon "Kodari", as per his statement. He has supported the cause of death of the deceased due to shock and head injury. There cannot be any doubt on the medical evidence produced by the prosecution, but this witness would not connect the allege act of the accused committing murder of his real brother. 7. From the entire evidence recorded by the learned Presiding Officer, Fast Track Court, Gondal and the reasonings given for acquitting the accused appears to be quite legal and cogent, calling for no interference at the hands of this Court. 8. Resultantly, Criminal Appeal fails and the same is dismissed. Rule discharged with no order as to costs.