JUDGMENT : Dinesh Chandra Somani, J. This criminal appeal has been preferred by the complainant-appellant Balu Ram son of Hazari Lal and Criminal leave to appeal has been filed by the State of Rajasthan against the judgment dated 03.12.2015 passed by District and Sessions Judge, Bundi in Sessions Case No. 13/2014 whereby the learned Sessions Judge acquitted the accused respondents Jagannath son of Chhoga, Kanha son of Chhoga, Dev Lal son of Kanha and Sosar Bai wife of Jagannath all are by caste Gurjar residents of Laxmipura Police Station Sadar Bundi. 2. The prosecution story in brief is that one Balu Ram son of Hazari submitted a written complaint Ex.P-5 to Badrilal (PW-9) ASI of Police Station Sadar-Bundi, District Bundi on 11.10.2013 at 4:45 PM indicating that on 11.10.2013 at about 3 O’clock, his nephew Gyani Lal, who is deceased and his sister Lalita Bai was going to their field on foot and as they reached near the well, the accused-persons namely Jagannath son of Chhoga, Khana Son of Chhoga, Dev Lal son of Khana, Neva Lal son of Khana, Bisra Bai D/o Khana, Dhapu Bai wife of Khana, Amarjeet son of Jagannath, Chouthmal son of Jagannath, Ram Kanya Bai D/o Jagannath and Sosar Bai wife of Jagannath, all equipped with axe (Kulhadi), Lathi, Gandasi and Rod were sitting in a charged position and when Gyani Lal passed through the way, they attacked on him, whereupon his sister Lalita shouted and started weeping. On hearing her voice, he reached at the spot and scolded the accused-persons then they bent to beat him and outdared then he returned to his village to call other persons and when he returned to the place of incident, they were beating Gyani Lal and he fell on the ground in pool of blood and then the accused persons ran away thinking him to be dead. Thereafter Gyani Lal was taken to the hospital and he died on the way etc. 3. On receipt of above report, an F.I.R. (Ex.P-13) was registered at Police Station Sadar-Bundi, District Bundi being F.I.R. No. 344/2013 for commission of offence under Section 147, 148, 149 and 302 of I.P.C. and investigation commenced. 4. Thereafter Gyani Lal was taken to the hospital and he died on the way etc. 3. On receipt of above report, an F.I.R. (Ex.P-13) was registered at Police Station Sadar-Bundi, District Bundi being F.I.R. No. 344/2013 for commission of offence under Section 147, 148, 149 and 302 of I.P.C. and investigation commenced. 4. During the course of investigation, police got conducted post-mortem of Gyani Lal and obtained report, handed over the dead body of Gyani Lal to his relatives for last rituals, samples of blood smeared soil and control soil were taken from the scene of occurrence, clothes worn by the deceased at the time of incident were seized, site plan was prepared, obtained photographs of place of incident, statements of witnesses were recorded under Section 161 of Cr.P.C., accused-persons were arrested, weapons were recovered from the accused-persons in consequence of informations given by them, juvenile-Chouthmal was detained and weapon was recovered in consequence of his information. Articles of the deceased and weapons seized from accused-persons were sent to FSL and after usual investigation the charge-sheet was filed against the accused-respondents for commission of offence under Section 147, 148, 149 and 302 of IPC in the Court of ACJM, Bundi. The offences being triable by the Court of Sessions, the case was committed to the Court of Sessions Judge, Bundi. Charge-sheet was also filed against juvenile Chouthmal for commission of offence under Section 147, 148, 149 and 302 of IPC before juvenile Justice Board, Bundi. 5. The learned trial Court framed charges against accused-respondents for offence under Section 147, 148 and 302, in alternate 302 read with Section 149 of IPC. The charges were read over and explained to the accused-respondents who pleaded not guilty and sought to be tried. 6. During the course of trial, prosecution examined as many as 18 witnesses and exhibited Ex.P-1 to Ex.P-34 in documentary evidence to prove the charges levelled against the accused-respondents. Thereafter, the learned trial Court put oral evidence of the prosecution witnesses and documentary evidence produced by the prosecution to the accused-respondents under Section 313 of Cr.P.C. In reply to the prosecution evidence, accused-respondents stated that deceased Gyani Lal used to quarrel after taking liquor, he wanted to create a way through the field of Jagannath. After hearing voice of Pappu Bheel, they went to the spot behind Balu Ram and Lalita. After hearing voice of Pappu Bheel, they went to the spot behind Balu Ram and Lalita. They did not see Chouthmal on the spot and they are innocent. In defence, the accused-respondents examined DW-1 Prakash, DW-2 Devlal and exhibited 5 documents. 7. After completion of trial, the learned trial Court held that the deceased-Gyani Lal sustained one injury on his head, therefore, all the accused-persons cannot be held guilty for offence charged. There was some old dispute between the accused-persons and complainant party with regard to right of way. Learned trial Court also held that the FIR has been lodged to implicate accused-persons and some other persons who have been discharged by the investigation agency. The learned trial Court found that the prosecution has failed to prove the charges levelled against the accused-persons and acquitted all the accused-respondents of the charges. 8. Being aggrieved by the judgment of acquittal, the complainant Balu Ram has preferred this appeal and State of Rajasthan has filed this application for leave to appeal before this Court against the judgment of the learned trial court dated 03.12.2015. 9. We gave our anxious consideration to the submissions made by learned counsel for the complainant-appellant and learned Public Prosecutor and perused the entire evidence and impugned judgment. 10. Learned counsel for the complainant-appellant has contended that the learned trial Court has decided the case in an arbitrary manner. It is an undisputed fact that the deceased died due to injury on his head, which is said to have been inflicted by Chouthmal who was a juvenile. Thus, it cannot be said that Choutmal had some personal grudge against the deceased and that the act performed by him was independent of any object or motivation. Chouthmal is son of accused-respondent Jagannath. Therefore, all the accused-respondents are vicariously liable under Section 149 of IPC for the alleged act of Chouthmal being member of the assembly. learned counsel for the appellant has also contended that learned trial Court has ignored proved fact that there was dispute between the parties with regard to right of way and earlier also 3 reports were filed by the complainant-appellant with the police against the accused-persons. Thus, it cannot be said that accused-persons were not members of an unlawful assembly. 11. learned counsel for the appellant has also contended that learned trial Court has ignored proved fact that there was dispute between the parties with regard to right of way and earlier also 3 reports were filed by the complainant-appellant with the police against the accused-persons. Thus, it cannot be said that accused-persons were not members of an unlawful assembly. 11. The learned counsel for the appellant has also contended that the learned trial Court found that the death of deceased is not natural but he died due to injury inflicted on his head, then it cannot be said that FIR is bundle of lies and has been cooked up and for that reason the police has discharged some of the accused-persons named in the FIR but no application under Section 319 of Cr.P.C. was filed by the appellant. The said observation of the learned trial Court is not in consonance with sound legal principles and prayed to accept the appeal setting aside the impugned judgment and to convict the accused-respondents for the charges levelled against them. 12. Learned Public Prosecutor has contended that the learned trial Court has not properly considered the facts and circumstances of the case and the material available on record. There is circumstantial evidence also to show that the accused-respondents are the persons who committed the offence. The learned trial Court gave undue weightage to the short comings of the investigation agency and thereby wrongly acquitted the accused-respondents and prayed to accept the leave to appeal setting aside the impugned judgment of acquittal of accused-respondents and to convict them of the charges levelled against them. 13. Section 378 of Cr.P.C. deals with powers of the High Court to grant leave in case of acquittal. Sub-section (3) of Section 378 of Cr.P.C. puts a restriction on entertaining appeals by imposing a condition that the leave of the High Court should be first obtained before any appeal is entertained. 14. In the instant case, there is no dispute that death of deceased Gyani Lal was not natural but was due to injuries found on his head. 15. From conjoint reading of autopsy report Ex.P-11 read with statement of PW-13 Dr. D.D. Meena, it reveals that there was an incised wound on scalp right side parietal near central to above right ear and posterior to lower occipital region vertical L shape 14 cm. long and bone deep centrally. 15. From conjoint reading of autopsy report Ex.P-11 read with statement of PW-13 Dr. D.D. Meena, it reveals that there was an incised wound on scalp right side parietal near central to above right ear and posterior to lower occipital region vertical L shape 14 cm. long and bone deep centrally. Skull is fractured with bone pieces obliquely 3x2 cm. open with SDH all over right side to all parietal to tempero occipital region with regular margin obliquely both margins posteriorly backward and the above injury was ante mortem in nature. PW-13 Dr. D.D. Meena opined that the cause of death is 'Coma' as a result of head injury. In cross- examination PW-13 Dr. D.D. Meena admitted that there was single injury on the body of the deceased. 16. The learned trial court found that there was some old dispute between accused persons and complainant party with regard to right of way. The prosecution has suppressed the origin of the incident therefore, whole story of the prosecution has become doubtful. In written report Ex.P-5, the complainant named 10 persons of accused party alleged to have caused murder of Gyani Lal but after investigation, police found that 5 persons named in the FIR are not involved in the incident and the learned trial court was of opinion that the FIR is nothing but a bundle of lies. 17. It is not in dispute that agricultural fields of accused-persons and complainant party are adjacent to each other and that there was an old dispute between the parties with regard to right of way. 18. According to written report Ex.P-5, the occurrence took place on 11/10/2013 at 3:00 PM. The place of occurrence is 30 km. away from the police station. Complainant Balu Ram (PW-8) submitted typed written report Ex.P-5 to the police in Government Hospital, Bundi at 4:45 PM. mentioning therein that police of Police Station Bundi came in Bundi Hospital where his nephew was lying dead and police got conducted autopsy of the deceased. Whereas according to Ex.P-11, autopsy was performed at 5:20 PM. These facts create doubt about the time of presentation of written report (Ex.P-5) by Balu Ram (PW-8) to the police and it reveals that the prosecution has suppressed the origin of the incident. 19. Whereas according to Ex.P-11, autopsy was performed at 5:20 PM. These facts create doubt about the time of presentation of written report (Ex.P-5) by Balu Ram (PW-8) to the police and it reveals that the prosecution has suppressed the origin of the incident. 19. Balu Ram (PW-8) is uncle of deceased Gyani Lal who submitted the written report Ex.P-5 to the police and he is the star witness of the prosecution. He mentioned in written report Ex.P-5 that Nevalal, Bisra Bai, Dhapu Bhai, Amarjeet, Ram Kanya, accused persons and juvenile Chouthmal total 10 persons armed with axe (Kulhadi), lathi, gandasi, rod were sitting in a charged position and when Gyani Lal passed through the way, they attacked upon him. After investigation police found that Neva Lal, Bisra Bai, Dhapu Bai, Amarjeet and Ram Kanya Bai were not involved in the incident and dropped them in the array of accused persons. 20. PW-3 Harji is resident of other village Daagla Ka Kheda, is brother-in-law of accused persons and uncle (Foofa) of the deceased Gyani Lal. PW-3 Harji in his Court statement has stated that his sister Aizan Bai alongwith her husband was living with him. She was ill. Dhapu Bai, Neva Lal, Bisra Bai, Ram Kanya and Amarjeet of Village Luxmipura came to him at Daagla ka Kheda and stayed there for 6-7 days and during this period the incident occurred. The witness also stated that Gyani Lal was beaten by Chouthmal and not by accused persons. In cross-examination, the witness stated that he came to Bundi Hospital on information of death of Gyani Lal. At that time Balu Ram (PW-8) was saying that he will involve all. 21. PW-4 Lalita is sister of deceased Gyani Lal. According to PW-4 Lalita, accused persons and other named persons armed with weapons met them near undivided well. Dev Lal blowed axe (kulhari) on the head of Gyani Lal. Chouthmal also blowed axe (kulhari) on Gyani Lal. Thereafter all accused persons did beating as they desire. Thereafter, she cried. Kanha blowed axe (kulhari) on his father Balu Ram but the blow missed. Thereafter, her brother Durga Lal came there on hearing their cries. In cross-examination, the witness admitted that at that time Pappu was driving tractor in the field of Jagannath. She also admitted that Chouthmal blowed axe (kulhari) on the head of Gyani Lal, which resulted in bleeding. 22. Thereafter, her brother Durga Lal came there on hearing their cries. In cross-examination, the witness admitted that at that time Pappu was driving tractor in the field of Jagannath. She also admitted that Chouthmal blowed axe (kulhari) on the head of Gyani Lal, which resulted in bleeding. 22. PW-8 Balu Ram stated in his Court statement that on 11/10/2013 Pappu was ploughing fields of Jagannath. After conversation with him, he alongwith his daughter Lalita was returning to well. At about 3:00 PM he was on well alongwith Gyani Lal and Lalita. Jagannath, Kanha, Dev Lal, Chouthmal, Harji, Sosar Bai, Bisra Bai, Ram Kanya Bai, Dhapu Bai were armed with weapons and were sitting in a charged position on the well. These persons attacked on Gyani Lal. Kanha assaulted on the witness with axe (kulhari) but it missed. He ran away and returned from village with Durga Lal who is brother of Gyani Lal. After beating up Gyani Lal, accused persons ran away thinking him to be dead. Thereafter, he and Durga Lal brought Gyani Lal to Bundi Hospital in jeep, where he was declared dead. He got the written report Ex.P-5 typed and submitted to SHO. In cross-examination, the witness stated that he went to the well with Lalita who stayed there and he alone went to tractorwala. The witness admitted that fact of Lalita being with him during conversation with Pappu, was falsely stated in examination-in-chief. The witness also admitted that, on the day of incident, controversy about the way took place between Gyani Lal and Chouthmal resulted into violence. According to witness, it is wrong to say that Chouthmal did not attack on Gyani Lal with axe (kulhari). When he went to field with Lalita, they found Gyani Lal sitting near the well. The witness also stated that C to D, E to F, and G to H portion of written report Ex.P-5 is wrongly mentioned. 23. PW-12 Durga Lal is brother of deceased Gyani Lal who stated that at the time of incident he was at his home and he went to the place of occurrence on hearing cries of Lalita. Lalita and Balu Ram met him on the way. In cross-examination, the witness stated that the accused persons ran away from the spot before he reached there and no talks took place between him and Gyani Lal. Balu Ram (PW-8) was not there on spot. Lalita and Balu Ram met him on the way. In cross-examination, the witness stated that the accused persons ran away from the spot before he reached there and no talks took place between him and Gyani Lal. Balu Ram (PW-8) was not there on spot. He and Lalita picked of Gyani Lal and brought him to home. 24. PW-6 Pappu Lal has stated that he went to the field of Jagannath and Kanha for ploughing. Wife of Jagannath was there on field. Fight took Place between Gyani Lal and Chouthmal near well. Thereafter he returned home. In cross-examination, the witness admitted that when Gyani Lal sustained injuries from falling, he shouted and called his family members. At that time none was present there from the family of Gyani Lal. Wives of Jagannath and Kanha were not there on the spot at the time of incident. 25. DW-1 Prakash is son of PW-3 Harji, who stated that his aunt (Bua) Aizan Bai was ill. Thus, Dhapu Bai, Bisra Bai, Ram Kanya Bai, Neva Lal and Amarjeet came to his house to see Aizan Bai. On telephonic information about quarrel, he and his father went to hospital, where his maternal uncle Balu (PW-8) met, who told him to involve all. 26. PW-8 Balu Ram in his written report Ex.P-5, named five more persons other than accused -respondents and juvenile Chouthmal. After investigation, police found them to be not involved in the incident and filed report accordingly in Court. It is also proved from the statement of PW-3 Harji that on the day of incident, remaining five persons named in the F.I.R., were in his village-Daagla Ka Kheda at his house. The similar statement has been given by DW-1 Prakash also. According to PW-3 Harji and DW-1 Prakash, they went to Bundi Hospital after getting information about quarrel, where Balu Ram (PW-8) met them, who stated them to involve all members of accused family. Both the witnesses are near relatives of both the parties and there is no reason to disbelieve on their testimony. From the evidence of these witnesses, it reveals that PW-8 Balu Ram was determined to involve all the family members of accused persons. Both the witnesses are near relatives of both the parties and there is no reason to disbelieve on their testimony. From the evidence of these witnesses, it reveals that PW-8 Balu Ram was determined to involve all the family members of accused persons. It is pertinent to note that PW-3 Harji did not support the prosecution case, rather he supported the defence but he was not declared hostile and subjected to cross-examination by Public Prosecutor, thus, his statement remained unrebutted. 27. PW-4 Lalita is cousin, PW-8 Balu Ram is uncle and PW-12 Durga Lal is brother of the deceased Gyani Lal, thus they are interested witnesses. These witnesses are said to be eye-witnesses of the incident. 28. According to PW-12 Durga Lal, he was at home at the time of incident and he went on the spot after hearing cries, therefore he is not an eye-witness of the incident. PW-17 Dharmendra Kumar Investigation Officer also has said that Durga Lal (PW-12) is not the eye-witness. PW-12 Durga Lal admitted in cross- examination that Balu Ram (PW-8) was not at the place of incident, therefore, presence of PW-8 Balu Ram at the time of incident is also doubtful. 29. PW-4 Lalita stated that all accused persons attacked on Gyani Lal with deadly weapons, whereas it is proved from the statement of PW-13 Dr. D.D. Meena that there was only one injury on the body of the deceased. Evidence given by PW-4 Lalita is not corroborated by medical evidence, therefore the evidence given by her appears to be exaggerated and false. 30. From perusal of statement of all the witnesses, it appears that at the time of incident, PW-6 Pappu Lal was present on the spot to plough the field of Jagannath. His presence on the spot is also admitted by PW-4 Lalita and PW-8 Balu Ram. PW-17 Dharmendra Kumar, Investigation Officer also admitted in cross- examination that Pappu Lal was ploughing the field of Jagannath at the time of incident. PW-6 Pappu Lal clearly stated that fight took place between Gyani Lal (deceased) and Chouthmal (juvenile) and none was present there from the family of deceased Gyani Lal. This witness did not support case of the prosecution but he was not declared hostile and subjected to cross- examination by the Public Prosecutor, therefore the evidence given by him remained unrebutted and there is no reason not to believe on his evidence. This witness did not support case of the prosecution but he was not declared hostile and subjected to cross- examination by the Public Prosecutor, therefore the evidence given by him remained unrebutted and there is no reason not to believe on his evidence. PW-6 Pappu Lal speaks nothing about the presence of PW-4 Lalita and PW-8 Balu Ram on the spot at the time of incident, rather he stated that when Gyani Lal sustained injuries by falling, he shouted and called his relatives. 31. PW-17 Dharmendra Kumar has investigated the case. According to him, he seized an axe (kulhari) from accused-respondent Kanha in consequence of his information but the said axe (kulhari) is not bloodstained. A lathi was seized from the possession of accused-respondent Sosar Bai in consequence of her information but it is not bloodstained. An axe (kulhari) was seized from the possession of accused-respondent Jagannath in consequence of his information which also is not bloodstained. An axe (kulhari) was seized from the Kaccha House of accused-respondent Dev Lal vide memo Ex.P-10 which was found bloodstained but prosecution has not produced Chemical Analysis Report of Forensic Science Laboratory (FSL) to prove that it was human blood, thus, it cannot be presumed that the axe (kulhari) seized from accused Dev Lal was stained with blood of deceased Gyani Lal. PW-17 Dharmendra Kumar admitted in cross-examination that the accused persons opened locks of their houses and then the recoveries were made. According to the prosecution, the recoveries were made while the accused persons were in custody. Accused persons were arrested vide arrest memo Ex.P-24, 25, 26 and 27. According to arrest memos, nothing was found on the body of accused persons except the clothes worn by them. Thus, the statement of PW-17 Dharmendra Kumar that the locks on the houses of accused persons were opened by them, cannot be believed. The said circumstance makes the said recoveries doubtful. Therefore, involvement of accused- respondents in the crime is not established from the circumstantial evidence also. 32. PW-1 Ram Ballabh is witness of site plan Ex.P-1, recovery memo of blood smeared and control soil Ex.P-2, recovery memo of clothes of the deceased Gyani Lal Ex.P-3 and inquest report Ex.P-4. PW-2 Chhitar Lal is also a witness of Ex.P-1, Ex.P-2 and Ex.P-3. PW-5 Shankar Lal and PW-7 Lokesh are witnesses of inquest report Ex.P-4. 32. PW-1 Ram Ballabh is witness of site plan Ex.P-1, recovery memo of blood smeared and control soil Ex.P-2, recovery memo of clothes of the deceased Gyani Lal Ex.P-3 and inquest report Ex.P-4. PW-2 Chhitar Lal is also a witness of Ex.P-1, Ex.P-2 and Ex.P-3. PW-5 Shankar Lal and PW-7 Lokesh are witnesses of inquest report Ex.P-4. PW-9 Badri Lal gave evidence regarding preparation of inquest report Ex.P-4 and delivery of dead body of Gyani Lal to his brother Durga Lal vide memo Ex.P-6. PW-10 Ram Lal son of Modu and PW-11 Ram Lal son of Ugma gave evidence regarding recovery of weapons from accused-respondents vide memo Ex.P-7, Ex.P-8, Ex.P-9 and Ex.P-10. PW-14 Shiv Ram gave evidence that he obtained five packets from Maalkhana of Police Station on 25/10/2013 and deposited the same in Forensic Science Laboratory (FSL) Kota on the same day vide receipt Ex.P-11. PW-18 Chouthmal the then Maalkhana Incharge gave evidence with regard to deposit of three packets on 11/10/2013, three packets on 16/10/2013 and two packets on 18/10/2013 in sealed condition. PW-16 Laduram (ASI) stated that on 11/10/2013, a written report Ex.P-5 was produced before him, whereupon F.I.R. No. 344/2013 was registered. PW-17 Dharmendra Kumar is Investigation Officer who gave detailed account of investigation. 33. The case of prosecution is that all the accused persons gave beatings to Gyani Lal by deadly weapons. But according to medical evidence as discussed above, there was only one injury on the body of deceased Gyani Lal, which indicates that all the accused persons were not involved in the incident of beating. According to PW-6 Pappu Lal, the fight took place between Gyani Lal (deceased) and Chouthmal (juvenile). Therefore, accused-respondents cannot be held responsible for murder of deceased Gyani Lal. 34. The learned trial court found that all the accused persons are not guilty of offence under Section 149 of IPC for the reason that the deceased Gyani Lal died due to single blow as there was no other injury on his body. Moreover, some persons have been discharged by the Investigating Agency, the bonafides of the complainant-appellant are not established. Learned trial Court found that there was some old dispute between the accused persons and complainant party with regard to right of way and the complainant has lodged the said F.I.R. to implicate all the family members of the accused persons. Moreover, some persons have been discharged by the Investigating Agency, the bonafides of the complainant-appellant are not established. Learned trial Court found that there was some old dispute between the accused persons and complainant party with regard to right of way and the complainant has lodged the said F.I.R. to implicate all the family members of the accused persons. Learned trial court relying on the judgments of this Court in Ladupuri @ Ladugiri vs. State of Rajasthan reported in 2015 (2) RCC (Raj.) 585 and Teju & Ors. vs. State of Rajasthan reported in 2015 (1) CR.L.R. (Raj.) 05 and after critically analyzing the statements of PW-3 Harji, PW-4 Lalita, PW-6 Pappu Lal, PW-8 Balu Ram, PW-12 Durga Lal, PW-13 Dr. D.D. Meena and PW-17 Dharmendra Kumar, was of the view that there are material contradictions in the statements of prosecution witnesses on important points and the prosecution has failed to prove the charges levelled against the accused-respondents. 35. The scope of hearing a Criminal Appeal and Criminal Leave to Appeal against the judgment of acquittal is limited. The initial presumption of innocence of accused persons is further strengthened by judgment of acquittal. We are of the considered view that Leave to Appeal against the judgment of acquittal ought not to be granted until an apparent error in the judgment of trial court is pointed out as discussed above, there is no sufficient ground to interfere in the impugned judgment. 36. In view of the above, the prosecution having failed to make out a case under Sections 147, 148, 302 in alternate 302/149 of IPC against the accused-respondents therefore, the appeal preferred by complainant-appellant under Section 372 of Cr.P.C. and the application for Leave to Appeal filed by the State of Rajasthan under Sub-section (1) and (3) of Section 378 of Cr.P.C. deserve to be dismissed. 37. Consequently, we find no force in the Criminal Appeal and Criminal Leave to Appeal and the same are dismissed.