JUDGMENT : DEBASISH KAR GUPTA, J. 1. These appeals are directed against judgment and order of acquittal dated December 6, 2014, passed by the learned Additional District and Sessions Judge, Fast Track Court-I, Howrah in Sessions Trial No. 88 of 2012 acquitting the accused persons of the charge under Sections 302/120B of the Indian Penal Code (hereinafter referred to as I.P.C.) read with Section 25 (1) (B) (a) of the Arms Act. The former appeal bearing GA No. 3 of 2015 is preferred by the State of West Bengal and the later one bearing CRA No. 688 of 2016 is preferred by the victim (widow of the deceased person). 2. The facts of the case in a nutshell as under:- “On May 6, 2011, at about 9.15 hours one Tapan Dutta (the deceased person) of Paschim Santinagar went to Bally Police Station by riding a motorcycle bearing No. WB12-X6370. One Sri Bablu Prosad (PW-1) was the pillion rider of his motorcycle. After submitting an application for permission of a meeting of “Bally Jagacha Citizen Right and Protection Forum” scheduled to be held on May 11, 2011, he was returning back at about 21.45 hours. When he reached near Bally Bangasishu towards Ghoshpara, District-Howrah, near a pond by the side of level crossing 5/6 persons aged about 25-30 years wearing pant shirt and one of them wearing black ganji opened fire from their firearms aiming at the deceased person. The PW-1 immediately jumped from the motorcycle and began to run. The miscreants, after chasing him from a short distance fled away towards Ghoshpara old State Bank, Howrah. The deceased person sustained injuries and fell down on earth. He succumbed to those injuries at the place of occurrence. According to the post mortem report, the deceased sustained following injuries:- (i) One lacerated injury 3 inch x 2.5 inch into brain in the right fronto temporal scalp with underlying piece meal fracture of right temporal and right part of frontal bone and partial extrusion of the brain matter; (ii) Scalp hematoma 3 inch x 2 inch of left partial scalp adjoining vertex; (iii) Scalp hematoma 3 inch x 2 inch over left occipital scalp adjoining mid line and vertex; (iv) One gunshot wound of entry 1.5 x 1.5 inch with abrasion collar of 2.5 mm at the upper pat placed over lateral aspect of right lower arm, 2.5 inch bellow elbow. One dissection seen to have piercing skin, fascia soft tissue fracturing piece meal the right radius bone and finally with an exit wound ¼ inch x ¼ inch over right medial lower arm 4 inch bellow elbow; (v) One gunshot wound of entry 3 inch bellow injury No. 4 in the same direction and parallel to injury No. 4 and finally making exit wound 7 inch bellow elbow on the medial aspect of right lower arm; (vi) One gunshot wound of entry ½ inch by ½ inch over upper right lower leg, 4 inch bellow knee joint. On dissection seen to have passed among horizontally fracturing piece meal the right tibia at corresponding level and ricocheting upwards to the medial thigh from where a bullet (deformed) was recovered; (vii) One gunshot wound of entry over right lower lateral chest wall with abrasion collar right more than left ¼ inch x ¼ inch, 7 inch right of mid line and 2 inch above costal marring. On dissection the track passes through skin, intercostals muscle then piercing diaphragm then the whole left of liver and finally passing out from the lest anterior lower chests wall as exit wound between 8 and 9 ribs closes to costal margin; (viii) One gunshot wound of entry measuring ½ x ½ inch over posterior lateral right chest wall between 3rd and 4th rib, track seem to have pierced skin, fascia right lungs with pleura, heart, left lung with pleura, left lateral chest wall and coming out as exit wound ¼ inch x ¼ inch over left anterolateral chest wal 4 inch bellow left anterior axillary fold; (ix) One gunshot wound of entry over lateral aspect of the right upper arm on dissection seen to have gone deep up to left humeral head; (x) Abrasion 1 inch x 1 inch over right anterior upper chest wall adjoining mid clavicle; (xi) Abrasion 1 inch x 1 inch over right interior upper abdomen 1 and ½ inch bellow right costal margin.” 3. According to the opinion of the doctor, the injuries show vital reaction and the death was due to the gunshot injuries as noted above, ante mortem and homicidal in nature. 4. A letter of complaint dated May 6, 2011, was received in the Bally Police Station at 23.35 hours from the PW-1. According to the opinion of the doctor, the injuries show vital reaction and the death was due to the gunshot injuries as noted above, ante mortem and homicidal in nature. 4. A letter of complaint dated May 6, 2011, was received in the Bally Police Station at 23.35 hours from the PW-1. The above complaint was diarized in Bally Police Station under Entry No. 421 at 23.35 hours. An FIR bearing Bally P.S. Case No. 205 of 2011, dated May 6, 2011, was registered against unknown miscreants for commission of offence punishable under Sections 302/34/120B I.P.C. read with Sections 25/27/35 of the Arms Act. 5. One Dudh Kumar Middey (PW-26), Assistant Sub-Inspector of Police, Howrah Police Station, prepared inquest report (Ext.-11) on the dead body of the deceased person at the Howrah General Hospital on May 7, 2011, at 9.35 hours with reference to Howrah P.S. Case No. 205/11 dated May 7, 2011. According to the preliminary investigation recorded in the above inquest report, the deceased succumbed to the gunshot injuries over his body caused by some unknown persons while he had been proceeding towards Ghoshpara under Bally Police Station on the way back from the above police station on May 6, 2011, at about 21.45 hours. 6. Initially Chanchal Nandi, Sub-Inspector of Police Bally Police Station (PW-34) was appointed as investigating officer of the above case. On May 12, 2011, the investigation was handed over to Sri Sandip Ganguly (PW-34), Sub-Inspector of Police, Criminal Investigation Department, SOG section, Homicide Squad, Bhawani Bhawan at Kolkata. On August 30, 2011, charge-sheet no. 406/11 was submitted against five accused persons, namely, (1) Subhas Bhowmick @ Baban, (2) Kartick Das @ Bapi @ Sweti Bapi @ Lipstick Bapi, (3) Ramesh Mahato, (4) Sasthi Gayen and (5) Ashit Gayen for commission of offence punishable under Sections 302/34/120B I.P.C. and Sections 27/35 of the Arms Act keeping the investigation pending for verification of some vital points and the information which might stood vital evidences in support of proving the charge against other accused persons whose names had been surfaced during investigation. 7. On September 26, 2011, a supplementary charge-sheet no. 406A/11 was filed against two other accused persons, namely, (1) Santosh Singh @ Police and (2) B. Raju showing them absconder. 7. On September 26, 2011, a supplementary charge-sheet no. 406A/11 was filed against two other accused persons, namely, (1) Santosh Singh @ Police and (2) B. Raju showing them absconder. According to the above supplementary charge-sheet, there was no evidence against (1) Govinda Hazra, (2) Kalyan Ghosh, (3) Arup Roy, (4) Amit Pal Choudhury, (5) Babu Mondal, (6) Panchu Begani, (7) Lakshmi Halder and (8) Paritosh Bar whose names had been surfaced during investigation on the ground of alleged long standing enmity with the deceased person over the alleged filling of some canals in the area concerned. Thereafter, on June 5, 2014, a further supplementary charge-sheet no. 406B/2014 was filed against one the accused persons, namely, Subhas Bhoumik @ Baban for commission of offence under Section 25 (1) (B) (a) of the Arms Act. 8. On August 29, 2012, charge was framed against accused persons namely, (1) Ashit Gayen, (2) Sasti Gayen, (3) Kartick Das, (4) Subhas Bhoumik @ Baban and (5) Ramesh Mahato for commission of offence punishable under Sections 302/120B I.P.C. Subsequently, on November 29, 2004, additional charge was framed against accused Subhas Bhoumik @ Baban for commission of offence under Section 25 (1) (B) (a) of the Arms Act. 9. After considering the evidence of 36 prosecution witnesses, other documentary evidences and statement of the accused persons recorded under Section 313 Cr. P.C. the impugned judgment and order of acquittal was passed. 10. It is submitted by Mr. Bikash Ranjan Bhattacharyya, learned Senior Advocate appearing on behalf of the appellant in the former appeal bearing CRA No. 688 of 2016 that from the evidence of PW-2, PW-11 and PW-25 the existence of Bally-Jagacha Jolabhumi Bachao Committee was proved and the same was corroborated by the statement of PW-30 recorded under Section 164 Cr. P.C. Drawing our attention towards the evidence of prosecution witnesses, it is further submitted by Mr. Bhattacharyya that the learned Court below failed to appreciate the above evidence on record and to arrive at a conclusion that the common intention of the accused persons in furtherance to their acts to murder of the deceased person was to stop the movement against filling up of water body namely Joypur Bill near Bally-Jagacha where the construction of a residential complex had been in progress at the instance of “Anmol Group of Developers” with the aid and assistance of Maa Tara Developers. Drawing our attention towards the evidence of PW-30 it is submitted by him that the learned Court below ignored that there was corroboration of the statement of PW-30 recorded under Section 164 Cr. P.C. with his aforesaid evidence that a meeting of Jalabhumi Bacho Committee was scheduled to be held on November 6, 2011. Drawing our attention towards the evidence of PW-35, PW-17, PW-18 and Exhibits-4 and 8 it is submitted by him relating to the recovery of two maps of the area where the Joypur Bill was situated from the house of accused Sasti Gayen and Asit Gayen and from a petrol pump leading to the statements of the above accused persons Sasti Gayen was proved beyond doubt. According to him, the learned Court below not only failed to appreciate the aforesaid evidence but also there was failure on the part of the learned trial judge to consider the involvement of accused Asit Gayen and Ramesh Mahato apart from the aforesaid accused Sasti Gayen in commission of offence of murder of the deceased person. 11. Mr. Bhattacharyya repeated and reiterated the submissions made by Mr. Sudipta Maitra, learned Special P.P. with regard to recovery of one bullet press head with blood stain from the place of occurrence, recovery of firearms and ammunitions including bullet (fired in testing) from the residence of Subhas Bhoumik @ Baban to submit that there was failure on the part of the learned Court below to appreciate those evidences in its proper perspective. It is also submitted by Mr. Bhattacharyya that though the appellant being victim under the definition of Section 2 (wa) I.P.C. had a little role to play, she conducted adequate steps approaching the learned Court below for adducing further evidence by way of filing application dated March 19, 2014 for adducing further evidence. According to Mr. Bhattachryya, there was gross failure to ensure fair trial by the learned Court below due to denial of such opportunity to the victim (PW-25). 12. It is also submitted by Mr. Bhattacharyya that though the learned Judge expressed his helplessness in the impugned judgment and order of acquittal in case of faulty investigation, Section 311 Cr. P.C. confers adequate power to the learned Court below to unearth the truth in a criminal trial. 13. Reliance is placed by Mr. 12. It is also submitted by Mr. Bhattacharyya that though the learned Judge expressed his helplessness in the impugned judgment and order of acquittal in case of faulty investigation, Section 311 Cr. P.C. confers adequate power to the learned Court below to unearth the truth in a criminal trial. 13. Reliance is placed by Mr. Bhattacharyya on the decisions of Hema vs. State through Inspector of Police Madras, (2013) 10 SCC 192 , S. Govindaraju vs. State of Karnataka, (2013) 15 SCC 315 , Agnel Kujur vs. State, (2008) 1 CHN 860 , Saroj Kumar Das vs. State of West Bengal, (2016) Cri. L.J. 3602, R. Shaji vs. State of Kerala, (2013) 14 SCC 266 , Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 and Dhanabal and Another vs. State of Tamil Nadu, (1980) 2 SCC 84 in support of his above submissions. 14. It is submitted by Mr. Sudipta Maitra, learned Special Public Prosecutor appearing on behalf of the appellant in the later appeal bearing GA No. 3 of 2015 that the prosecution case was proved beyond all reasonable doubts on the basis of the underline tone of oral evidence of the prosecution witnesses considering its intensive value thereof. According to him, the prosecution case was proved beyond any reasonable doubt on the basis of the evidence the place of occurrence, date and time of occurrence and the manner in which the murder of the deceased person took place. According to him, the learned Court below failed to appreciate that the prosecution case was based upon circumstantial evidence which was proved beyond any reasonable doubt in view of the oral evidence of PW-1, PW-5, PW-27, PW-35, amongst others, as also documentary evidence thereof. 15. It is further submitted by him that the seizure of empty case of cartridge (Mat. Ext. I) was proved from the evidence of PW-3 and PW-4. The cause of death of the deceased person as mentioned in the inquest report prepared by PW-26 was corroborating with the post mortem report prepared by PW-24. The seizure of firearm and ammunitions from the house of Subhas Bhoumik @ Baban was proved from the evidence of PW-35 and PW-32 which was corroborating with Exbt.-7 Mat Ext.-II and III. Though supplementary charge-sheet no. The seizure of firearm and ammunitions from the house of Subhas Bhoumik @ Baban was proved from the evidence of PW-35 and PW-32 which was corroborating with Exbt.-7 Mat Ext.-II and III. Though supplementary charge-sheet no. 406B/2014 had been filed against Subhas Bhoumik @ Baban by the investigating agency on November 29, 2014 for commission of offence under Section 25 (1) (B) (a) of the Arms Act as also added and charge was framed against the aforesaid accused person on November 29, 2014 for commission of such offence, the learned Trial Court was in error not to appreciate the aforesaid evidence, both oral and documentary while passing the impugned judgment and passed order of acquittal against the aforesaid accused Subhas Bhoumik @ Baban, amongst others. It is also submitted by Mr. Maitra that the learned single Judge failed to exercise his power under Sections 165 or 311 Cr. P.C. while passing the impugned judgment and order of acquittal. 16. Reliance is placed by Mr. Maitra on the decisions of Durgacharan Nayak and Others vs. State of Orissa, AIR 1966 SC 1775 , C. Ronald and Another vs. State U.T. of Andaman and Nicobar Island, 2012 Cri. L.J. 672, Tapandass and Another vs. Sosti Dass, AIR 1986 Cal. 390 , Bhajju @ Karan Singh vs. State of M.P. 2012 Cri. L.J. 1926 and Bhagwan Singh vs. State of Haryana, (1976) 1 SCC 389 in support of his above submissions. 17. According to Mr. Sekhar Basu, learned Senior Advocate appearing on behalf of one of the accused persons namely, Ramesh Mahato, the charge framed on August 29, 2012, was not sustainable in law. According to the aforesaid charge, the accused persons agreed to do the illegal act of killing of the deceased person at any time at any place. Drawing our attention towards the fact that the accused Ramesh Mahato was in jail custody it is submitted by him that the allegation of holding threat or restraining the deceased person to organize any movement against alleged filling up of water body was not accepted by the learned trial Court correctly. 18. According to him, the charge of commission of offence punishable under Section 120B I.P.C. was not sustainable in view of the framing of the above erroneous charge. It is further submitted by Mr. 18. According to him, the charge of commission of offence punishable under Section 120B I.P.C. was not sustainable in view of the framing of the above erroneous charge. It is further submitted by Mr. Basu that the evidences of PW-16 and PW-30 did not fulfil the requirement of sub-section (1) of Section 32 of the Indian Evidence Act. It is also submitted by him on the basis of the statements made in Court with regard to their respective statements made under Section 164 Cr. P.C. could not be considered for the purpose of corroboration or contradiction in absence of proving of their evidences in Court. The statements made under Section 164 Cr. P.C. by the aforesaid witnesses were not properly proved in Court. It was further submitted by him that no question was put to the above accused person in course of recording his statement under Section 313 Cr. P.C. in connection with the statements made by PW-16 and PW-30 under Section 164 Cr. P.C. 19. Drawing our attention towards the evidences of PW-11, PW-13 and PW-14 it is submitted by him that there was no order of restraining the persons concerned to raise construction in question. As a result the question of resistance to raise construction was not correctly accepted by the learned trial Court. According to him, the victim (PW-25) did not bring any substantive evidence before the Court in support of Ext.10. Consequent thereupon, there was no scope to give further consideration to the documents mentioned in the above exhibit. 20. Reliance is placed by Mr. Basu on the decisions of Subhash @ Dhillu vs. State of Haryana, (2015) 12 SCC 444 , Baliya @ Bal Kishan vs. State of M.P. 2012 (7) Supreme 465 , Babubhai Bhimabhai Bokhira vs. State of Gujarat and Others, (2014) 5 SCC 568 , State of Delhi vs. Shri Ram Lohia, AIR 1960 SC 490 , Ramanlal Rathi vs. The State, AIR (38) 1951 Calcutta 305, Ukha Kolhe vs. State of Maharashtra, AIR 1963 SCC 1531 and Bahal Singh vs. State of Haryana, AIR 1976 SC 2032 in support of his above submissions. 21. It is submitted by Mr. 21. It is submitted by Mr. Milon Mukherjee, learned Senior Advocate appearing on behalf of 4 other accused persons namely, (1) Ashit Gayen, (2) Sasti Gayen, (3) Kartick Das and (4) Subhas Bhoumik @ Baban that the victim (PW-25) initially filed three petitions before the learned Court below on one pretext or other. Ultimately, she filed a petition dated March 19, 2014, for recalling the above witness for adducing further evidence. Our attentions have also been drawn towards the fact that the statement of PW-25 was recorded under Section 161 Cr. P.C. on May 12, 2011. She was not inclined to record her statement under Section 164 Cr. P.C. On March 22, 2012, the case was committed to the Court of learned Additional District and Sessions Judge for trial. An application under Article 226 of the Constitution of India bearing W.P. No. 12526 (W) of 2012 was filed by the above victim challenging the investigation. Her evidence was recorded in Court on September 24, 2013. According to Mr. Mukherjee, the petition dated March 19, 2014, was filed by the above victim at a belated stage and as a result the same was rejected by the learned Court below by an order dated May 8, 2014, with an observation that she was in the habit of submitting petitions on one pretext or other. According to Mr. Mukherjee, Ext.10 was nothing but a list of some document. According to him, the allegations of the above victim with regard to presence of a motive on the part of the accused persons or their enmity with the deceased person, negligence in investigation, negligence of the learned Public Prosecutor to conduct the trial properly or failure on the part of the learned Court below to appreciate the evidence properly were not based on materials on evidence. 22. Mr. Mukherjee repeated and reiterated the submissions of Mr. Sekhar Basu, learned Senior Advocate in respect of the evidence of PW-16 and PW-30 in connection with their respective statements made under Section 164 Cr. P.C. It is further pointed out by him that PW-25 did not disclose the names of the accused either in police station or in her statement recorded under Section 161 Cr. P.C. Therefore, there was no corroboration of the statements made by PW-16 and PW-30 under Section 164 Cr. P.C. in this regard. P.C. It is further pointed out by him that PW-25 did not disclose the names of the accused either in police station or in her statement recorded under Section 161 Cr. P.C. Therefore, there was no corroboration of the statements made by PW-16 and PW-30 under Section 164 Cr. P.C. in this regard. Drawing our attention towards the evidence of PW-24 who had conducted the post mortem examination over the dead body of the deceased person read with the post mortem report, it is submitted by Mr. Mukherjee that there was a doubt that whether the gunshot injuries detected in the body of the deceased person were anti mortem in nature. It is also submitted by him that in absence of ballistic report with regard to the seized empty case of cartridge, the nexus of the seized firearm and ammunitions with the commission of offence question was not proved. 23. Reliance is placed by Mr. Mukherjee on the decisions of Brij Bhushan Singh vs. Emperor, AIR (33) 1946 PC 38, Ramanlal Rathi vs. The State, 1951 (52) Cr. L.J. 301 and Dhanna vs. State of Madhya Pradesh, AIR 1996 SC 2478 in support of his above submissions. 24. We have heard the learned Counsel appearing for the respective parties at length and have considered the facts and circumstances involved in this appeal carefully. 25. It will be profitable for us to recollect the broad principles of law relating to the power conferred upon the High Court in case of hearing an appeal against a judgment and an Order of acquittal passed in a trial. 26. In dealing with an appeal in case of acquittal the appellate Court must bear in mind that the accused starts with a double presumption in his favour; first the presumption of evidence, and secondly the accused having secured an acquittal the Court will not interfere until it is shown conclusively that the inference of guilt is irresistible or that the finding of the lower Court is not justified by the evidence. In Sheo Swarup vs. King Emperor, AIR 1934 PC 227 , it was observed by the Privy Council that in dealing with an appeal from acquittal on a matter of fact, the High Court has full power to review at large the evidence and to reach the conclusion that upon the evidence the order should be reversed giving proper weightage and consideration to such matters. 27. The above issue came up for consideration before the Hon’ble Supreme in the matter of Prandas vs. State, AIR 1954 SC 36 , when the matter had been heard by six Hon’ble Judges and the principle enumerated by Privy Council in Sheo Swarup (Supra) was wholly approved. A concise statement of law on this issue is available from a judgment delivered by this bench in Smt. Fultusi Ray vs. State of West Bengal, (2015) 2 Cal. LT 50 (HC). 28. The first contention of Mr. Bikash Ranjan Bhattacharya, was that the existence of Bally-Jagacha Jolabhumi Bachao Committee was proved and that the common intention of the accused persons in furtherance of their act for commission of offence was to stop the movement against filling up of water body, namely Joypur Bill near Bally -Jagacha where the construction of a residential complex had been in progress at the instance of “Anmol Group of Developers” with the aid and assistance of “Maa Tara Developers.” 29. The PW-1 was the FIR maker. According to his evidence he was a member of “Bally-Jagacha Citizen Rights and Protection Forum.” A meeting of the above organization was scheduled to be held on May 11, 2011. The deceased was another member of the above organization. On May 6, 2011, the PW-1 and the deceased went to the Bally police station for obtaining permission of the aforesaid meeting. At about 21.45 hours, when PW-1 and the deceased were returning from the Bally police station riding on a motor cycle driven by the deceased, near Jora Aswathhatala railway level crossing after crossing Bango Sishu Bidyalaya, assailants started firing from their firearms aiming at them. 30. The above movement of Jala Bhumi Banchao Committee for saving wetland from the danger of filling up, in which organization the deceased was an active member, was corroborated by the evidence of PW-2, the scribe of the written compliant of the PW-1. 30. The above movement of Jala Bhumi Banchao Committee for saving wetland from the danger of filling up, in which organization the deceased was an active member, was corroborated by the evidence of PW-2, the scribe of the written compliant of the PW-1. It surfaced from his evidence that the police had arrived at the place of occurrence when PW-1 described the incident to him. He was not shaken in cross-examination. According to the evidence of PW-5 in cross-examination, a resident of the locality concerned, he heard that the deceased was associated with Paribesh Rakha Committee. 31. The PW-11, a worker of “Anmol Group of Developers” stated in his evidence that “South City Project” and “W.P.S.T.D.C.” undertook a project with “Anmol Group of Developers” for construction of an industrial park at Mouja-Jagadishpur and Joypur. One Jhola Bhumi Committee raised protest in the matter. 32. The PW-13, a worker attached to “South City Project” during 2004-08, stated in his evidence that they had engaged “Maa Tara Developer” consisting of local inhabitants, for procurement and development of land. It was further stated by him that in 2009-10 One Tapan Dutta had raised objection in respect of their project work at Jagadishpur mouja, Police Station-Liluah. 33. The PW-16, an Environmental Worker, stated in his evidence that the deceased took active role in the matter of saving wet land near Bally-Jagacha bill. He was not shaken in his cross-examination in that regard. The PW-25, who is the appellant in the former appeal, stated in her examination-in-chief that that her husband, the deceased, had formed an organization under the name and style Jala Bhumi Bachao/Raksha Committee. Some resistance had been faced by her deceased husband in the functioning of that organization. 34. The PW-30, a campaigner of Human Rights and Environments, stated that the deceased started movement for saving the Jaypur wet land. 35. According to the evidence of PW-35 (I.O.), on August 27, 2011, two maps of Joypur Bill had been recovered and seized from the house of accused Sasti Gain and Asit Gain and a petrol pump respectively, leading to the statements of the above accused. 36. The above seizures were proved by the evidence of PW-31 (Ext. 5/2 & 6/2 respectively). 37. The prosecution case was based on circumstantial evidence. 36. The above seizures were proved by the evidence of PW-31 (Ext. 5/2 & 6/2 respectively). 37. The prosecution case was based on circumstantial evidence. The above evidences were relating to very important facts in order to make an attempt to find out chain of events to ascertaining the scope of involvement of the accused in commission of the offence with the aid of other equally important evidence on record. 38. In State of Karnataka vs. V.K. Gopalkrishna, (2005) 9 SCC 291 , it has been held by the Apex Court that in the event the findings of the trial court suffer from serious illegality including ignorance or misreading of evidence on record, the appellate court will be justified in setting aside an order of acquittal and the relevant portion of the above judgment is quoted below:- “17. We are conscious of the fact that we are dealing with an appeal against an order of acquittal. In such an appeal the appellate court does not lightly disturb the finding of fact recorded by the court bellow. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the court bellow, that is sufficient for upholding the order of acquittal. However, if the appellate court comes to the conclusion that the finding of the court bellow are wholly unreasonable or perverse and not based on the evidence on record, the appellate court will be justified in setting aside such an order of acquittal. We find this case to fall under the latter category. We find no rational justification for the conclusion reached by the High Court. The High Court has misread the evidence on record and has completely ignored the relevant evidence on record which was accepted by the trial court. We, therefore, allow the appeal, set aside the impugned judgment and order of the High Court and restore the judgment and order of the trial Court. The respondent shall be taken into custody forthwith to serve out the remainder of the sentence. His bail bonds are cancelled.” (Emphasis supplied) 39. The learned court below though arrived at a conclusion that the incident took place at Bally Level crossing/Bally Jora Aswathatala Level crossing, completely misread the above evidence on record to arrive at a finding that the above prosecution witnesses could not specifically state as to who raised the protest. His bail bonds are cancelled.” (Emphasis supplied) 39. The learned court below though arrived at a conclusion that the incident took place at Bally Level crossing/Bally Jora Aswathatala Level crossing, completely misread the above evidence on record to arrive at a finding that the above prosecution witnesses could not specifically state as to who raised the protest. We find no rational justification for not reading the evidence of PW-1, PW-2, PW-5, PW-16, PW-25 and PW-30 along with that of PW-11 as a whole in order to proceed further on the basis of the other evidence available on record in quest of bringing out the truth in the prosecution case of alleged nexus of murder of the deceased with the movement of saving the wet land in question from the hands of the land developers in which the deceased took an active role. Therefore, the learned court below ignored the relevant evidence on record and for that reason the impugned judgment and order was wholly unreasonable or perverse not being based on evidence on record. 40. In view of the distinguishable facts and circumstances the decisions of Subhash @ Dhillu (supra) and Baliya @ Bal Kishan (supra) cited by Mr. Sekhar Basu do not help the respondent no. 4 in the former appeal. 41. Regarding the second contention of Mr. Bhattacharya regarding the scope of consideration of the statements made by the PW-16 and PW-30 respectively, recorded under Section 164 Cr.P.C. it has to be borne in mind that the provisions of above Section applies to all sorts of confession whether made by a person accused of an offence or not. The distinction between “statement” not amounting to confession and “confession” appears to have reference only to the different modes in which it has to be recorded under sub-sections (4) and (5) of Section 164 Cr.P.C. All statements by witnesses to the police are shut out by Section 162 except for the strictly limited purpose of contradiction of prosecution witnesses during trial. This rule of law have the origin because the unreliability of the police and their tendency to adopt questionable methods for extorting statements. So, the intention of recording statement of a witness under Section 164 Cr.P.C. is to protect person against extortion or oppression by them. The presence of a Magistrate to safeguard is equivalent to police influence. The statement recorded under Section 164 is not substantive evidence. So, the intention of recording statement of a witness under Section 164 Cr.P.C. is to protect person against extortion or oppression by them. The presence of a Magistrate to safeguard is equivalent to police influence. The statement recorded under Section 164 is not substantive evidence. It can be used either for contradiction or for corroboration. Therefore, the purpose of recording the statement of a witness is under Section 164 Cr.P.C. is generally to fix him to it when it is feared that he may resile afterwards or may be tampered with. Further, the mere fact that the statement was previously recorded under Section 164 Cr.P.C. will not be sufficient to disregard it. When the witnesses have themselves did not support their version, their statement earlier recorded under Section 164 Cr.P.C. could not be available to the prosecution for their corroboration. It could, to the maximum be used for prosecution for their contradiction. In Phoolchand vs. State of U.P. 2004 Cr. L.J. 1904, it was observed by the Apex Court that it would be a fallacy of a legal approach to have reliance upon the statement of a witness recorded under Section 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis. It has further been observed by the Hon’ble Supreme Court in Sawal Das vs. State of Bihar, (1974) 4 SCC 193 that the omission to produce as prosecution witness a person whose statement recorded under Section 164 could be used to corroborate or contradict him if he had appeared as a witness would entitle the accused to ask the Court to give him benefit of presumption under Section 114 (g) of the Evidence Act. Upon consideration of facts and circumstances of the case in hand we find that neither PW-16 nor PW-30 absent from adducing evidence before the Court. Nor any one of them retracted from their earlier stand to support the prosecution case regarding their statements before the Court. Therefore, the statement recorded by the aforesaid prosecution witnesses under Section 164 Cr.P.C. looses its importance due to availability of their substantive evidence before the Court in support of the prosecution case instead of retracting from their stand taken at the investigation. 42. With regard to the decision of Sri Ram Lohia (supra) we are of the opinion that the settled principles of law declared in the above decision does not help the respondent no. 42. With regard to the decision of Sri Ram Lohia (supra) we are of the opinion that the settled principles of law declared in the above decision does not help the respondent no. 4 in the former appeal in view of our observation made hereinabove. Similarly the decision of Bahal Singh (supra) does not help the above respondent on the ground that retrial is not necessary in the case in hand on the ground that two reasonable conclusions can be reached on the basis of the evidence on record. 43. The decision of Brij Bhushan Singh (supra), the Privy Council did not accept the procedure adopted by the Chief Court in accepting the statement made under Section 164 Cr.P.C. by two prosecution witnesses as substantive evidence but the facts and circumstances in the case in hand is not similar to the above fact. So, it does not help the respondent nos. 2, 3, 5 and 6 of the former appeal. 44. Regarding the next contention of Mr. Bhattacharya with regard to the nexus of seizure of two maps of Joypur Bill area from the house of accused Sasti Gayen and Asit Gayen as also other one from a petrol pump of the area concerned leading to the statement of the above accused persons, we are of the opinion that the learned Trial Judge failed to take into consideration the fact of above seizure misreading the deposition of an employee of that petrol pump (PW-17) that there was no nexus of Joypur Bill with those maps. 45. 45. Regarding the next contention of failure on the part of the trial court to take necessary steps in exercise of power conferred under the provision of section 311 Cr.P.C. it necessary to observe that section 311 Cr.P.C. read with section 165 the Indian Evidence Act confer vast and wide power on the court to play an active role in the evidence collecting process in monitoring the proceeding in aid of justice consisting of two parts, namely, (i) to summon any one as witness or to examine any person present in court or to recall any witness for re-examination and (ii) to take any of the above steps if the new evidence appears to be essential to the just decision of the case provided that the court is bona fide of the opinion that for the just decision of the case, the step must be taken. Reference may be made to the decision of Himanshu Singh Sabharwal vs. State of M.P. (2008) 3 SCC 602 . 46. The learned court below further found that Ext. 10 was a seizure list in respect of the seizure which had taken place on May 12, 2011, at the house of the deceased containing petitions dated March 19, 2010, and September 5, 2010, i.e. prior to the murder of the deceased, written in the letter heads of “Jala Bhumi Bachao Committee of the deceased addressing IG, South Bengal, SP Howrah, I.C. Liluah P.S. respectively, as also three photographs of Jaypur Bill in question taken on February 27, 2010, by the deceased showing some filling and construction work. Though the learned court bellow observed that those documents were indeed very vital in order to ascertain the existence of Jaypur Bill in question and the apprehension of the deceased relating to the same prior to his death, the court expressed its helplessness consequent upon non-production of those documents before the court during trial by the prosecution. 47. From the above observation of the learned court bellow there was not even an iota of doubt that the prosecution failed to produce some evidence which was necessary for a just and proper disposal of the case. 48. 47. From the above observation of the learned court bellow there was not even an iota of doubt that the prosecution failed to produce some evidence which was necessary for a just and proper disposal of the case. 48. At this stage we cannot forget that we are dealing with former appeal at the instance of an appellant who is a victim under the newly incorporated provision of clause (wa) of section 2 Cr.P.C. It has been held by the Apex Court in Mina Lalita Barua vs. State of Orissa, AIR 2014 SC 782 , that it is true that under the provision of sub-section (2) of Section 301 Cr.P.C. the right of a private person to participate in the criminal proceeding has got its own limitation in the conduct of the proceeding. But ingredients of section 311 Cr.P.C. empowers the court in order to arrive at a just decision to resort to an appropriate measure befitting the situation in the matter of examination of witnesses. The relevant portion of the above decision are quoted below:- “21. Having referred to the above statutory provisions, we could discern that while under section 301(2) the right of a private person to participate in the criminal proceeding has got its own limitations, in the conduct of the proceeding, the ingredients of section 311 empowers the trial court in order to arrive at a just decision to resort to an appropriate measure befitting the situation in the matter of examination of witnesses. Therefore, a reading of sections 301 and 311 together keeping in mind a situation like the one on hand, it will have to be stated that the trial court should have examined weather invocation of section 311 was required to arrive at a just decision. In other wards even if in the consideration of the trial court invocation of section 301(2) was not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope of invoking section 311 and set right the position. Ultimately, as stated earlier, the trial court was in a great hurry in rejecting the applicant’s application without actually relying on wide power conferred on it under section 311 for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime be remedied. Ultimately, as stated earlier, the trial court was in a great hurry in rejecting the applicant’s application without actually relying on wide power conferred on it under section 311 for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made.” (Emphasis supplied) 49. Pertinent to mention here that the learned counsel appearing for the first respondent- State in the above matter contended that that the application for re-calling had been filed by the appellant ten months after the PW-18 was examined and, therefore, on the ground of delay as well the grievance of the appellant could not be redressed. 50. Now, coming back to deal with another peculiar fact and circumstances that the appellant in the former appeal, who was PW-25 in the trial, filed an application dated March 19, 2014, before the learned court bellow praying for allowing her to adduce further evidence by way of recalling under section 311 Cr.P.C. One of the grounds mentioned in that application was the ignorance of the learned public prosecutor to enable PW-25 to state relevant facts before the court in course of adducing her evidence. The learned court below rejected the above application observing that the PW-25 had been in the habit of making applications on one pretext or other and that the application deserved an order of rejection on the ground that it had been submitted at a belated stage. So, application of the above settled principle of law to the aforesaid facts and circumstances leads to an irresistible finding that the learned court bellow should have examined whether invocation of section 311 Cr.P.C. was required to arrive at a just decision. Even in the consideration of the trial court invocation of sub-section (2) of section 302 Cr.P.C. was not permissible, the scope for invoking section 311 Cr.P.C. should have been examined to bring the seized articles contained in Ext. 10 as also to allow the PW-25 to adduce further evidence by way of re-calling notwithstanding consideration of the period of delay in filing her application. 51. Let us now consider the contention of Mr. 10 as also to allow the PW-25 to adduce further evidence by way of re-calling notwithstanding consideration of the period of delay in filing her application. 51. Let us now consider the contention of Mr. Sudipta Maitra, learned Special Public Prosecutor appearing on behalf of the appellants in the later appeal bearing G.A. No. 3 of 2015 filed by the State of West Bengal. Mr. Bikash Ranjan Bhattacharya, learned Senior advocate appearing on behalf of the appellant in the former appeal bearing CRA No. 688 of 2016 also repeated and reiterated the statements made by Mr. Maitra with regard to the findings of the learned Court below in arriving at a conclusion in respect of the additional charge framed on November 29, 2004 against accused Subhas Bhoumik @ Baban for commission of offence under Section 25 (1) (B) (a) of the Arms Act. 52. According to the evidence of PW-35 (the second I.O.), on June 8, 2011 he had conducted a raid in the house of accused Subhas Bhoumik @ Baban situated at Rishra. He was accompanied by PW-31 and PW-32 both Sub Inspectors of Police, posted at CID, Bhabani Bhawan at the material point of time. In course of the above raid one country made pipe gun along with 188 mm bullet was recovered and seized from the possession of accused Subhas Bhoumik @ Baban from his above house. He further stated that the seizure list (Exbt.-7/1) was prepared by PW-31 bearing his signature. According to his deposition the improvised country made pipe gun was exhibited as Mat Exhibit-III. The above pipe gun was loaded when it was seized. He further adduced that the label relating to country made pipe gun and one round of 8 mm live ammunitions contained his signature. The signature over the labels were marked as Exbt.-13/1 and 14/1. He was not shaken during cross-examination with regard to his above statements. 53. The above evidence of PW-35 was further corroborating with that of PW-32 also proved his signature on the above seizure list marking the same as Exbt.-7/2. 54. The signature over the labels were marked as Exbt.-13/1 and 14/1. He was not shaken during cross-examination with regard to his above statements. 53. The above evidence of PW-35 was further corroborating with that of PW-32 also proved his signature on the above seizure list marking the same as Exbt.-7/2. 54. The learned Court below while considering the fact of the above seizure of improvised country made pipe gun with ammunition from the house of accused Subhas Bhoumik @ Baban, amongst others, that during cross-examination the PW-35 took into consideration, amongst other, that at the time of search and seizure in question no arm expert was present with the raiding party. Though PW-33, Assistant Director, Ballastic Department, Forensic Science Laboratory, Calcutta, in her deposition stated that the arms in question was “single short improvised pistal” the learned Trial Judge considered her statement as “one pistal” was examined by the above witness. The learned Trial Judge did not take into consideration that apart from one local witness, namely PW-21 there were other witnesses namely PW-31 and PW-32 apart from the I.O. (PW-35). No reason has been assigned by the learned Court below to arriving at a conclusion that the evidence of PW-31 or PW-32 were not creditworthy assigning any reason therefor. 55. That apart, we cannot ignore the fact of seizure of one blood stained empty bullet and empty cartridge from the place of occurrence seized on the date of incident. The same have also been brought on record as Mat Exbts. I and III and the signature of the above prosecution witness was also proved and exhibited as Exbt.-2/2 by him. Neither the same was sent for obtaining Ballastic Report from the Forensic Science Laboratory at Calcutta nor the above seized articles were taking into consideration by the learned Court below for a just decision in the matter in accordance with law as discussed hereinabove. 56. Therefore, we are of the opinion that the findings of the learned Court below with regard to the above aspect were not based on evidence on record or not justified by proper assessment of the evidence on record coupled with taking proper steps for a just decision of the case. 57. Therefore, we find substance in the submissions made by Mr. 57. Therefore, we find substance in the submissions made by Mr. Maitra, learned Special Public Prosecutor appearing for the appellant-State in G.A. No. 3 of 2015 that the above evidences were relating to very important facts in order to make an attempt to find out the chain of events for ascertaining the scope of involvement of accused Subhas Bhoumik @ Baban, amongst other accused persons in commission of offence punishable under Sections 25/27 of the Arms Act. 58. In the decision of Ramanlal Rathi (supra), it was decided that seriousness of a case could not be a ground for retrial. But in the case in our hand direction for retrial is necessary on the grounds discussed hereinabove which are not similar to the above ground. The decision of Ukha Kolhe (supra) does not help the respondent no. 4 in the former appeal because it has been held hereinabove that the trial was vitiated by serious irregularities or illegalities. 59. Since the reasons for arriving at a conclusion in the case in hand for retrial is based on particular reasons set-forth hereinabove, the decision of Ramanlal Rathi (supra) has no manner of application in the former appeal. 60. In the decision of Dhanna (supra), the Hon’ble Supreme Court discussed unwritten rules of adjudication consistently followed by the Hon’ble Judges of the Apex Court while dealing with appeals against acquittal. Since there is no departure from adherence of the above unwritten rules in arriving at a conclusion in the case in hand, we do not think that the above decision has no manner of bearing on the case in hand. 61. In view of the discussion and observation made hereinabove, the impugned judgment and order of acquittal are quashed and set aside with direction upon the trial court to invoke the power conferred under section 311 for limited purpose of bringing the seized document contained in Ext. 10 in accordance with law as also to allow the prosecution and/or the appellant in the former appeal (PW-25) to adduce further evidence by way of re-calling as also allowing the accused persons to cross-examine her and, thereafter, to record further statements of the respondent Nos. 2 to 6 under section 313 Cr.P.C. afresh. 10 in accordance with law as also to allow the prosecution and/or the appellant in the former appeal (PW-25) to adduce further evidence by way of re-calling as also allowing the accused persons to cross-examine her and, thereafter, to record further statements of the respondent Nos. 2 to 6 under section 313 Cr.P.C. afresh. Needless to mention that in the event prayer is made by either of the parties for adducing further evidence, the same shall be considered by the learned Trial Judge in accordance with law in order to unearth the truth. 62. It will not be out of context to record here that this judgment is passed pending an application filed by the appellant under Article 226 of the Constitution of India in the matter of Protima Dutta vs. State of West Bengal (In Re: W.P. No. 12526 (W) of 2012) with a prayer for a direction upon the Central Bureau of Investigation to investigate in connection with the aforesaid FIR bearing Bally P.S. Case No. 205 of 2011, dated May 6, 2011. The Hon’ble Supreme Court after considering Special Leave to Appeal (Crl.) in the matter of Sasti Gayen vs. Protima Dutta and Others (In Re: Crl. M.P. No. 1083/2017) passed final order dated January 27, 2017 as follows:- “Criminal Appeal No. (S) 179 of 2017 (Arising out of SLP (Crl.) No. 821 of 2017) (Arising out of SLP (Crl.) Crl. M.P. No. 1083/2017) Sasti Gayen – Appellant Versus Protima Dutta and Others – Respondents ORDER : 1. Application seeking permission to file special leave petition is allowed. 2. Leave granted. 3. As all the contesting parties are before us, we are inclined to pass final orders in the matter. 5. On due consideration and taking into account the order of acquittal passed by the learned trial Court, which is presently under challenge in the High Court, we are of the view that the said appeal shall be heard in the first instance and, thereafter, if required the writ petition seeking order for further investigation by the CBI may be considered by the High Court. 6. With the aforesaid modification of the order of the High Court the appeal is allowed. RANJAN GOGOI, J. ASHOK BHUSHAN, J. .......... NEW DELHI Dated: 27th January, 2017.” 63. 6. With the aforesaid modification of the order of the High Court the appeal is allowed. RANJAN GOGOI, J. ASHOK BHUSHAN, J. .......... NEW DELHI Dated: 27th January, 2017.” 63. According to the above order dated January 27, 2017, passed by the Hon’ble Supreme Court these appeals (CRA No. 688 of 2016 and GA No. 3 of 2015) should be heard in the first instance and, therefore, if required the writ petition seeking order for investigation by the Central Bureau of Investigation may be considered by this Court. 64. These appeals are, therefore, allowed and disposed of. 65. Let this judgment together with the Lower Court's records be sent back to the learned Court below expeditiously. Md. Mumtaz Khan, J. I agree.