JUDGMENT : B.N. Karia, J. 1. This Appeal, preferred by the State of Gujarat under Section 378[1](3) of the Code of Criminal Procedure, 1973 ["CrPC" for short], seeks to challenge judgment and order dated 1st August 2005 passed by the learned Presiding Officer, 9th Fast Track Court, Nadiad in Sessions Case No. 233 of 2004, whereby, the respondent herein is acquitted of the charge for the offence punishable under Sections 302 & 504 IPC, but recorded conviction under Section 323 IPC for a term of three months and fine of Rs. 500/-; and in default thereof, to undergo one month simple imprisonment with a direction for set off of the period already undergone as an under-trial prisoner. 2. Brief facts of the case, to appreciate the rival contentions urged before us for and on behalf of the respective sides, are- On 15th July 2004, at about 12:45 noon, when the complainant and deceased Vijaybhai Devajibhai went to sleep under a Baniyan tree, at that time, Vishnubhai took up altercation with deceased in respect of illicit relationship he had with the complainant. The brother of the accused started abusing the deceased and had beaten up the deceased with lathis and cause injuries over vital parts of the body viz., head, neck, which resulted into deceased-Vijaybhai succumbing to the injuries. Accordingly, a complaint came to be lodged against the accused-Vishnubhai Chhotabhai Talpada [respondent herein] for the offence punishable under Section 302 read with Section 504 IPC at Nadiad Town Police Station, being C.R. No. 274/2004. 3. After investigation, the Police laid charge-sheet before the Chief Judicial Magistrate, Nadiad. Since the offence committed by the accused was absolutely triable by the Court of Sessions, the matter was committed to the Court of learned District & Sessions Judge, Nadia on 27th October 2004, where it was numbered as Sessions Case No. 233 of 2004. 4. At trial, the respondent pleaded not guilty and claimed to be tried, and therefore, the prosecution examined 12 witnesses and produced 8 documentary evidences before the learned trial Judge. After a full-fledged trial, the learned Presiding Officer, 9th Fast Track Court, Nadiad was pleased to acquit the accused from the charges punishable under section 302 and 504, but convicted him under section 323 IPC for three months simple imprisonment and fine of Rs. After a full-fledged trial, the learned Presiding Officer, 9th Fast Track Court, Nadiad was pleased to acquit the accused from the charges punishable under section 302 and 504, but convicted him under section 323 IPC for three months simple imprisonment and fine of Rs. 500/-; and in default, to undergo one month simple imprisonment with a direction to set off the sentence, if the convict had undergone the same as an under-trial prisoner, giving rise to filing of the present Appeal by the State of Gujarat. 5. Heard learned advocates appearing for the respective sides. 6. Learned APP Mr. Rutvij Oza appearing for the appellant-State assailed the impugned judgment and order dated 1st August 2005 passed by the learned Fast Track Court, Nadiad in Sessions Case No. 233 of 2004 contending that the same is contrary to law and against the evidence available on the record. That, the prosecution witness No. 7 Shankerbhai Manibhai Raval at Exh. 20 and PW-8 Vijaybhai Devjibhai Tadpada at Exh. 21 both of them have clearly supported the case of prosecution, however, the learned trial Judge has failed to evaluate their testimonies in proper manner. That, PW-10 Dr. Nasar Kayambhai Desai at Exh. 27 has also supported the prosecution case stating that the medical history was given by one Kamlaben that Vishnubhai had given fatal blows to the deceased. That, the deceased had external injuries over head and neck and they were ante mortem, corresponding to the internal injuries to the body. That the cause of death was due to hemorrhage caused due to the injuries on spleen. That, the learned Judge has committed grave error in not believing the evidence of this witness. That the prosecution witness No. 11-Motibhai Uddhabhai Chauhan; PW-12 Ranchhodbhai Gopalbhai Patel both of them have clearly supported the version of the prosecution case, however, there was no doubt to disbelieve the testimonies given by these witnesses. That, the learned trial Judge has committed an error in not believing their testimonies. That, erroneously the learned trial Judge has come to a conclusion that the prosecution has failed to establish guilt of the accused by finding that there are major discrepancies in the version of the eye witnesses. That, the evidence of the prosecution witnesses is not appreciated in proper manner. That, erroneously the learned trial Judge has come to a conclusion that the prosecution has failed to establish guilt of the accused by finding that there are major discrepancies in the version of the eye witnesses. That, the evidence of the prosecution witnesses is not appreciated in proper manner. That, admittedly, the deceased was beaten up by the accused with a wooden plank on the vital part of the body with knowledge that in the event of injured person will succumb to such injuries. That the acquittal of the accused person is bad in law and contrary to the evidence on record. Hence, it was requested by learned APP to quash the impugned judgment and order dated 1st August 2005 passed in Sessions Case No. 233 of 2004 by the learned Presiding Officer, 9th Fast Track Court, Nadiad. 7. Per contra, learned advocate Mr. Tejas Barot appearing for the respondent has extended support to the impugned judgment and order rendered by the learned trial Judge by urging that the prosecution has grossly failed to prove the charges against the respondents beyond reasonable doubt. It was urged that in the complaint Exh. 33, it is stated by the complainant that there were two blows given to the deceased Devjibhai which were mainly on his forehead, and four to five blows were inflicted on the neck and at that time, deceased fell down and passed away. That, what ever statement is made in the complaint was not supported by the alleged two eye witnesses viz., Shankerbhai Manibhai Raval [PW-7: Exh. 20]; and son of the deceased Vijaybhai Devjibhai Talpada [PW-8: Exh. 21]. That, testimony of both these eye witnesses is quite contrary to each other and they have not supported the contentions raised in the complaint Exh. 33. That the complainant-Kamlaben expired after lodging the complaint, and therefore, she could not be examined and there was no opportunity available for defence to cross examine her. That as per the medical evidence, there were only two blows given to the deceased and only two injuries were found on the body of the deceased which were not sufficient to cause death in a natural course. That, as per the opinion of Dr. Nasar Kayambhai Desai [PW-10: Exh. 27], who performed post mortem of Devjibhai and prepared a report at Exh. That, as per the opinion of Dr. Nasar Kayambhai Desai [PW-10: Exh. 27], who performed post mortem of Devjibhai and prepared a report at Exh. 28, it is clearly stated that any person if running and falling down, such type of injury could be possible, but the injury shown in Column No. 17 of the post mortem report can be caused by falling on stone or hard/blunt substance, as both these injuries were simple in nature viz., [a] CLW 1" x 1/4" x bone deep on left side of forehead; and [b] contusion red in colour 1" x 1/2" on nape of neck. That, none of the witnesses examined by the prosecution have stated that any injury was caused by the respondent on the spleen of the deceased and thus, the prosecution has failed in proving the homicidal death of the deceased. That, there were material contradictions in the deposition of the witnesses and no reliance can be placed by the Court that no blood stain were found on the clothes of the deceased. That, the evidence of the prosecution witnesses strongly creates doubts and are not trustworthy. That, whatever statements and testimonies of both the alleged eye witnesses are made, they are contrary to each other and to the statement given before the Police under Section 162 CrPC. That, they have tried to improve the case of prosecution in their testimony before the Police which were not disclosed by them before the Police. Hence, there is no error committed by the learned trial Judge in acquitting the respondent for the offence punishable under Section 302 & 504 IPC. Hence, it was ultimately urged by the learned advocate for the respondent to dismiss the present Appeal of the State. 8. Having heard learned advocate for the appellant-State as well as learned advocate for the respondent and having bestowed our anxious consideration to the material placed before us, first of all, we would like to analyze the legal position. 9. In case of Sadhu Saran Singh v. State of Uttar Pradesh & Ors., reported in (2016) 4 SCC 357 , the Apex Court while discussing scope of interference in appeal against acquittal order, held and observed as under:- "20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. 9. In case of Sadhu Saran Singh v. State of Uttar Pradesh & Ors., reported in (2016) 4 SCC 357 , the Apex Court while discussing scope of interference in appeal against acquittal order, held and observed as under:- "20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held: "7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal." 10. Now, if we consider the complaint lodged by Kamlaben before the Police on 15th July 2005, which is produced on record at Exh. 33, it is stated by the complainant that her husband-Devjibhai and son Vijay were when about to sleep under a Banyan tree near Anna School during noon hours, at that time, the accused-respondent herein came at that place and started abusing and hence, he was requested to stop use of such language, and therefore, getting annoyed, he started inflicting blows with wooden plank and caused forehead injury to the deceased Devjibhai-husband of the complainant. It is also stated in the complaint that four to five more blows were given on the neck and hence the deceased fell down and succumbed to injuries at the same place. It is further stated that PW-7 Shankerbhai Manibhai Raval, who was running his business of selling vegetable "cucumber" on a lorry and other persons gathered there and as a result thereof, the accused ran way from the place alongwith his weapon. It is further stated that thereafter, son of the complainant came there and shifted Devjibhai to Civil Hospital at Nadiad. As the complainant has passed away during the pendency of the trial, she could not be examined by the prosecution and even there was no scope for her cross examination by the defence. Hence, there were only two material witnesses which remained to be examined by the prosecution viz., Vijay Devjibhai and Shankerbhai Manibhai Raval. PW-Vijaybhai Devjibhai Talpada was examined as PW-8 at Exh. 21 and PW-Shankerbhai Manibhai Raval was examined as PW-7 at Exh. 20. As per his statement, while he was doing business of selling vegetable "cucumber" in a lorry, the accused snatched away some cucumbers from his lorry and at that time, Devjibhai who was sitting below a baniyan tree pursued the accused saying as to why he was harassing Shankerbhai, this resulted into altercations between the accused and Devjibhai and both of them started quarreling. Soon the accused inflicted a blow of wooden "Dafna" on the head of Devjibhai, and thereafter, mob gathered and hence the accused left the place. It transpires from the cross examination of this witness that there was no occasion of this witness meeting with Vishnubhai before this incident or accused was not known to him. Even Devjibhai was also not known to this witness before this incident. There was not a single occasion of illegally taking way of cucumber from his lorry by the accused viz. Vishnubhai. Even Devjibhai was also not known to this witness before this incident. There was not a single occasion of illegally taking way of cucumber from his lorry by the accused viz. Vishnubhai. This witness has further admitted that he has not stated in his statement before the Police that, "...while he was proceeding ahead with his lorry having vegetable "cucumber", the accused had snatched away some cucumber from his lorry and at that time, Devjibhai who was sitting under a banyan tree pursued the matter urging the accused Vishnubhai as to why he was harassing a lorrywalla and thereafter quarrel started between them." This witness has further admitted that it was not so that the accused told Devjibhai as to why he was sleeping there and abused him. Devjibhai on the contrary requested to stop abusing him and hence he was annoyed. This witness has no knowledge in respect of injury caused to Devjibhai and on what parts of the body of deceased it were inflicted. Even he has not stated in his police statement that it is not seen by him that while Vishnubhai was snatching vegetable cucumber from his lorry, deceased-Devjibhai came to his place and while shouting, other members from Waghri community came there as well as there was a free fight between deceased-Devjibhai and respondent-Vishnubhai. According to him Vishnubhai had also received head injuries and before the incident, he had a good relation with Devjibhai. From the deposition and particular from the cross examination of this witness, it clearly transpires that whatever is deposed by this witness in the examination-in-chief was not declared by him in a statement made before the Police under Section 162 CrPC. This witness has tried to improve the case of prosecution. Further, he has deposed before the Court below contrary to the facts declared by the complainant in her complainant at Exh. 33. 11. Now, let us examine testimony of another eyewitness viz., Vijaybhai Devjibhai Talpada [PW-8: Exh. 21], who is son of deceased Devjibhai. Of course, as per the submissions of the defence, he is an interested witness since he being son of the deceased, and therefore, deposition of this witness cannot be believed. However, there is no straitjacket formula that merely one being relative of the deceased, his testimony cannot be considered by the Court. 21], who is son of deceased Devjibhai. Of course, as per the submissions of the defence, he is an interested witness since he being son of the deceased, and therefore, deposition of this witness cannot be believed. However, there is no straitjacket formula that merely one being relative of the deceased, his testimony cannot be considered by the Court. The Court is obliged to consider the testimony, if it is trustworthy and reliable, and therefore, the said argument putforth by the defence cannot be countenanced. PW-8 Vijaybhai in his deposition at Exh. 21 has stated that accused was eating cucumber which was taken by him from a lorry of Shankerbhai [PW-7] and at that time, Shankerbhai went to call Devjibhai requesting him to pursue the matter with the accused-Vishnubhai and hence Devjibhai came to the lorry of PW-7 Shankerbhai and asked the accused-Vishnubhai as to why he was harassing a lorry-walla. To this, the accused-Vishnubhai got annoyed and told him that he should not intervene in the matter, and thereafter, swiftly assaulted on the head of Devjibhai with a wooden "Sandiyo". Thereafter, PW-8 Vijaybhai went to call his brother Kamlesh and others and proceeded to lodge a complaint. If we consider the cross examination of this witness, he has denied that in his Police statements, he has declared that, "Shankerbhai was standing with his lorry having vegetable 'cucumber' when the accused Vishnubhai snatched some away by force and hence Shankerbhai went to call Devjibhai with a view to pursue the matter and hence Devjibhai came near the lorry of Shankerbhai and pursued by Vishnubhai that he should not intervene in the matter. But, if we consider the deposition of I.O. Shri Ranchhodbhai Gopalbhai Patel [PW-12: Exh. 32], he has admitted that the above said statements was not given by witness Vijay Devjibhai in his statement recorded by the Police, and therefore, it clearly transpires that whatever statement was given in the examination-in-chief of this witness was not declared by him before the Police in his statement recorded under Section 162 CrPC. As per the complainant at Exh. 33, the offence was committed while deceased Devjibhai; his son Vijay Devjibhai and complainant herself were about to sleep under a banyan tree during noon hours and at that time, accused assaulted Devjibhai by a weapon "wooden Zuri". Whereas, this fact is not disclosed from the deposition of PW-8 Vijaybhai Devjibhai. As per the complainant at Exh. 33, the offence was committed while deceased Devjibhai; his son Vijay Devjibhai and complainant herself were about to sleep under a banyan tree during noon hours and at that time, accused assaulted Devjibhai by a weapon "wooden Zuri". Whereas, this fact is not disclosed from the deposition of PW-8 Vijaybhai Devjibhai. As per his statement, incident took place near a lorry of Shankerbhai Manibhai Raval where deceased Devjibhai came to pursue the matter with the accused Vishnubhai. Therefore, this version appears to be doubtful. Further, if we consider entire deposition of this witness and the testimony of the Investigating Officer, there is a material contradiction found by the learned trial Judge, and therefore, no reliance can be placed on such a doubtful evidence of the prosecution witness by the Court, as it contradicts with the statement given before the Police. Further, the medical evidence, if we consider it, the prosecution has examined Dr. Nasar [PW-10: Exh. 20] who performed post mortem of deceased Devjibhai. As per his statement, there were two injures shown in Column No. 17 viz., [a] CLW 1" x 1/4" x bone deep on left side of forehead; and [b] contusion red in colour 1" x 1/2" on nape of neck. As per admission of this witness, in his cross examination, the injuries shown in column No. 17A were possible if a person in a running position falls down on a stone or a blunt substance. However, these were not sufficient injuries to cause death, but they were simple in nature and can be cured within eight to ten days of the occurrence. This Doctor has clearly certified and opined that shock due to external haemorrage caused due to injury to vital organ spleen. There is no case of the prosecution that any injury was caused by the accused to the deceased on vital organ spleen, and therefore, it can be said that whatever injures were caused to the injured were simple in nature, and therefore, death was not possible due to forehead and contusion injuries. Both the eye witnesses have stated that on head injury was caused to the deceased-Devjibhai by the accused. Medical evidence says that head injury caused to the deceased Devjibhai were simple in nature, and therefore, prosecution has failed to prove that due to injuries caused to the deceased by the accused, he lost his life. Both the eye witnesses have stated that on head injury was caused to the deceased-Devjibhai by the accused. Medical evidence says that head injury caused to the deceased Devjibhai were simple in nature, and therefore, prosecution has failed to prove that due to injuries caused to the deceased by the accused, he lost his life. There were no blood stain on the clothes of the deceased, as observed from panchnama Exh. 9. It also transpires that the accused has also lodged a complaint against deceased Devjibhai on 15th July 2004 at 7:45 pm under Section 323, 504 IPC, which was registered as NC No. 88 of 2004 produced vide Exh. 31. Shankerbhai Manibhai Raval [PW-7] has denied that the accused had received any injuries, though he has admitted in his statement that there was a quarrel between the accused and deceased Devjibhai. Another witness Vijaybhai Devjibhai [PW-8] has also accepted in his statement that his father gave force to the accused, and therefore, he received head injury. Therefore, presence of the accused at the place of offence cannot be denied which reveals from the evidence of the prosecution, and therefore, the learned trial Judge has come to the conclusion punishing the accused under Section 323 IPC and acquitting him for the offence punishable under Section 302 & 504 IPC, after evaluating the evidence of the prosecution. The trial Court has also found that the testimonies of both the eye witnesses are not reliable, trustworthy and admissible in evidence, as it being contrary to each other as well as complaint Exh. 33. Moreover, there is no perversity or illegality committed by the learned trial Judge in acquitting the accused-respondent herein under Section 302 & 504 IPC. Therefore, the reasons given by the learned trial Judge in his judgment and order dated 1st August 2005 passed in Sessions Case No. 233 of 2004 appears to be legal and cogent calling for no interference at the hands of this Court. Hence, the present Criminal Appeal fails and the same is dismissed accordingly. Bail bond stands cancelled.