JUDGMENT : Sanjay Kumar Gupta, J. 1. State is aggrieved of the acquittal earned by Bashir Ahmed S/o Allah Rakha, Ghulam Mustfa and Allah Rakha S/o Hasham Din, residents of Jandial Morha Nakhter Nalla, Tehsil Jammu ( for brevity ‘accused’) vide impugned judgment dated 08.06.2007 of learned 2nd Additional Sessions Judge, Jammu, in case FIR No.135/1995 registered in Police Station Kana Chak, Jammu for the offence under Section 302/341/34 RPC, therefore, Cr. Acq. Appeal No.50/2007. 2. The prosecution case, in brief, is that on 18.10.1995, the statement of injured Ghulam Ali was recorded in the Police Station Gharota. In his statement, he stated that he is a resident of village Jandial, Morah Nakheter Nallah, Tehsil and District Jammu. In the morning, he had gone to Akhnoor in connection with domestic work. After finishing his work, he was on way back to his home, at about 6/7 p.m. on reaching near the house of Munir Ahmed S/o Allah Din R/o Jandial, when he noticed that 1) Bashir Ahmed S/o Allah Baksh 2) Gh. Mustfa and 3) Allah Rakha, residents of Nakheter Nallah, hiding by the roadside. They were inimical to him. They restrained him wrongfully and launched an assault with lathies, stones, fists and feet and he got badly injured in the assault. He raised an alarm and the accused would have killed him. He and his family had a constant threat from them. So he lodged the report. This statement lead to registration of Report some people came on spot and rescued him otherwise No.20 dated 18.10.1995 of Police Station Gharota followed by registration of case FIR No.135/95 under Sections 341/336/323 RPC. Injured was hospitalized in GMC Jammu. Two stones were seized on the identification of wife of injured. Offence under Section 336 RPC was deleted and in the meantime, injured Ghulam Ali succumbed to injuries on 20.10.1995 and offence under Section 302/34 RPC got added. Wearing apparels of deceased, his blood sample were seized. Viscera of deceased were collected for expert examination. During investigation it was revealed that assailants had some enmity with deceased on a patch of land and deceased was an employee in PHE and accused were annoyed with him on irregular/non-supply of water as well. So accused planned to kill the deceased and in furtherance of common intention waylaid him and assaulted him, as a result of which, he got injured seriously and ultimately died. So accused planned to kill the deceased and in furtherance of common intention waylaid him and assaulted him, as a result of which, he got injured seriously and ultimately died. They were arrested and two lathies were recovered at the instance of accused No.1 & 2. Complicity of accused in commission of crime u/s 302/341/34 RPC was established, so investigation was culminated in the charge sheet before court below. 3. Accused were charged under Sections 302/341/34 RPC. They had pleaded not guilty and claimed to be tried. Accordingly, prosecution was directed to lead witnesses. The brief resumes of prosecution witnesses relevant for deciding the matter reads as under:- 1. PW Salima Bibi. She is the wife of deceased and has stated that a year before she, her husband and son, had gone to Jammu. On their way back, just near Shiva Bhata, they found accused hiding in bushes. They pounced upon her husband and attacked him. Accused were carrying lathies. Accused Allah Rakha had a stone. They raised an alarm, when Ab. Hamid, Yousaf Ali and Hanief came on spot, they rescued the victim. He sustained injuries on chest, back and legs. His right arm got fractured. The accused fled away and victim was carried to police post Gharota and a report was lodged, wherefrom he was shifted to Bakshi Nagar Hospital. He died on very next day. Deceased was an employee in PHE Dept. He got a tank constructed outside his house. Accused had a grievance that he is managing water to his taken at their cost, and so they had threatened that they would not spare him. They had a dispute with him on land also. Police recorded the statement of deceased in hospital. Since his right arm was fractured, so he put his thumb impression, instead of his signature. Police seized stones from place of occurrence. The witness has admitted the correctness of seizure memo EXPW-S; she has identified the lathies also. In cross-examination she says that a day before occurrence accused had threatened the deceased. Accused had planned to kill the deceased and the plan was made by accused in their house, and she heard them making a plan. Accused assaulted her as well. Her son Ab. Majid fled away from spot. Deceased suffered a fracture in his left arm. He had a number of wounds on his genitals as well. Accused had planned to kill the deceased and the plan was made by accused in their house, and she heard them making a plan. Accused assaulted her as well. Her son Ab. Majid fled away from spot. Deceased suffered a fracture in his left arm. He had a number of wounds on his genitals as well. He had two injuries on his head also. Place of occurrence is a thoroughfare. Deceased fell unconscious on spot. Place of occurrence is 100 years from her house. PW Mohd. Latief, is her brother. PW Jamat Ali is the brother of deceased and PWs Ab. Majid and Ab. Hamid are her sons. PW Mohd. Hanief is neither related to her nor to deceased. PW Bashiran Bibi, is her daughter and PW Mohd. Salim her brother. Deceased was a left hander. None other than witnesses came on spot. Occurrence took place just before sun set. Deceased would never consumer alcohol. It is not true that he had consumed alcohol before occurrence. Statement of deceased was recorded in presence of SHO and doctor, who too signed the statement besides deceased. 2. PW Ab. Majid. He is one of the sons of deceased. He and his mother had gone to Paloura and his father had gone to Jammu. On their way back to home, they got down from bus and started moving towards their home, accused who were in hiding attacked his father. One was having stones, while as others had lathies. They attempted to rescue the victim from accused. He and his mother raised an alarm. His sister Bashiran, Ab. Hamid, Mohd.Latief and Mohd. Hanief came on spot and accused ran away. Accused assaulted the deceased with lathies and stones. He sustained injuries on chest, back belly and legs. The deceased was shifted to Gharota police post, and to Jammu hospital. He has identified two stones and two lathies. In cross-examination he says that their land has been grabbed by accused. They were threatening the deceased since 2/3 months before occurrence. Deceased had three injuries on his head. Deceased was lifted from the place of occurrence on a cot. He was in senses. 3. PW Mohd. Salim. He happened to be the brother-in-law of deceased. On 18th October, 1995, at about 6.00 pm he had gone to attend to his cows at SHIVA. While being back, he heard some noise at FRATI. Deceased was lifted from the place of occurrence on a cot. He was in senses. 3. PW Mohd. Salim. He happened to be the brother-in-law of deceased. On 18th October, 1995, at about 6.00 pm he had gone to attend to his cows at SHIVA. While being back, he heard some noise at FRATI. He ran towards the place and saw accused beating the deceased. Accused Bashir Ahmed and Gh. Mustafa were carrying lathies, while as Allah Rakha accused had a stone with him. As a result of assault, deceased sustained injuries on head, arms and legs. He had a wound in his chest as well. Accused fled away on seeing him. Deceased was shifted to Gharota police post, from where he was sent to Jammu, and next day he passed away. Accused killed him on a dispute about land and water tap. In cross-examination he says that the disputed land is in possession of accused and deceased demanded the land back, which accused declined to do. His house in 8 miles away from the house of deceased. He was 50/60 yards away when accused ran away. Place of occurrence is 1/1-1/2 miles away from the house of deceased. 4. PW Jamat Ali. He is the brother of deceased. Accused and deceased usually quarreled in connection with a dispute over land. Deceased was a lineman in PHE Department. He was going back to his house on the fateful day, at about 5.00 pm. He heard some noise and rushed on spot to find that accused were beating the deceased. On seeing him, accused fled away. Sons of deceased namely Ah. Majid and Hamid also came on spot. Victim was lifted and taken to police post Gharota. He had sustained injuries on arms, back, legs and head. Accused assaulted him with lathies and stones. Accused kalla and Bashir had lathies and Allah Rakha had stone. Deceased died in hospital very next day. His wearing apparels were seized through seizure memo EXPW-JA. His blood sample was also seized through seizure memo EXPW-JA-1. Clothes of deceased were sealed and seal was handed over to him. Accused confessed their guilt in police custody. Accused Kalla and Bashir disclosed that they had hidden latheis in their house. Their statements were recorded separately. The disclosure statement of accused Bashir Ahmed stands exhibited as EXPW-JA-4. Accused Allah Rakha stated that he has left the stones on spot. Clothes of deceased were sealed and seal was handed over to him. Accused confessed their guilt in police custody. Accused Kalla and Bashir disclosed that they had hidden latheis in their house. Their statements were recorded separately. The disclosure statement of accused Bashir Ahmed stands exhibited as EXPW-JA-4. Accused Allah Rakha stated that he has left the stones on spot. Police took the accused along to the places of recovery. Accused 1, recovered a lathi from the roof of his house, which was seized through seizure meko EXPW-JA-5. Accused Kalla alias Mustafa also recovered a lathi from his house which was seized through EXPW-JA-6. He too had made a disclosure statement exhibited as EXPW-JA-7. He identified lathies in open court. In cross-examination he says that accused Allah Rakha discovered stone from the bushes on spot. Both the lathies were discovered from the single room in the house of Gh. Mustafa. His father was present there at the time of recovery. When the alarm was raized on spot PWs Salima, He (witness), Ab. Hamid and Ab. Majid were in the house of deceased. On hearing the noise he rushed to the place of occurrence. 2/3 minutes after Ab. Majid and Ab. Hamid also reached there and 2/3 minutes later PW Salim also came on spot. Mani Ram, Nazir Ahmad, Talib Hussain, Nasid Ali, Sardar Ali and Rafit, live just near the place of occurrence. 5. PW Ab. Hamid. He is one of the sons of the deceased. He says that his father was an employee in PHE Department. He had constructed a water tank near his house. This became the cause of friction between him and the accused, who are the cousins of deceased. On 18.10.1995 his father had gone to Jammu and at 6.00 pm he was on his way back to home. He was accompanied by his (witnesse’s) mother and Ab. Majid. When they reached FRATI, accused who were hiding in bushes, attacked the deceased. He heard the noise at his home and rushed t the place of occurrence. He found accused Bashir Ahmad and Gh. Mustfa, carrying lathies and assaulting the deceased. Accused Allah Rakha, accused was carrying stones. A noise was raised when a number of people gathered on spot and accused fled away. Deceased suffered fracture in both of his arms and also sustained injuries in legs and chest as well. He found accused Bashir Ahmad and Gh. Mustfa, carrying lathies and assaulting the deceased. Accused Allah Rakha, accused was carrying stones. A noise was raised when a number of people gathered on spot and accused fled away. Deceased suffered fracture in both of his arms and also sustained injuries in legs and chest as well. He had injuries on his genitals also. He was shifted to police post Gharota, where he lodged a report and from there he was referred to Medical College, Jammu where he died on 20.10.1995, at about 5.00 am. Accused were arrested and they made disclosure statements that they had killed the deceased. Accused Bashir made a disclosure that he had hidden a lathi in a room of his house in the roof, disclosure statement EXPW-JA4 was recorded. Accused Gh. Mustafa also made a disclosure statement that he had hidden a lathi in his house. This disclosure statement EXPW-JA-7 was also recorded. Then accused were taken on spot, and he was also taken along. Both of them recovered one lathi each, which were seized through EXPW-JA-5 and EXPW-JA-6. He has even identified the lathies in court. In cross-examination he says that place of occurrence is 2/2-1/2 kms away from his house. He makes it more clear by saying that the place of occurrence is as far from his house as MUBARAK MANDI is from JEWEL CHOWK, which must be around 2-1/2 to 3 kms distance. He was first to reach on spot, and when he reached there deceased had already fallen to ground. Then villagers also came on spot. There are 40/50 houses in his village and at least one from each house reached on spot. Had they not rescued the victim, accused Hussain, Munir Ahmed, Nazir Ahmed , Nasib Ali reached there first and then would have killed him. Talib the rest of villagers. They rescued the deceased When he heard noise, Hanif & Yousuf Ali were sitting with him. They also rushed to scene of occurrence. A number of people were present at the time of disclosure statements. Mohd. Hanif, Mohd. Latif, & Gh. Mohd. were also sitting there. At the place of recovery, police remained in the compound of the house of accused, and later brought lathies from their houses and handed them over to police. Legs, arms and genitals of deceased were bleeding. Police seized blood stained soil from spot. Mohd. Hanif, Mohd. Latif, & Gh. Mohd. were also sitting there. At the place of recovery, police remained in the compound of the house of accused, and later brought lathies from their houses and handed them over to police. Legs, arms and genitals of deceased were bleeding. Police seized blood stained soil from spot. Deceased fell unconscious on spot and remained so till he died. Houses of Mani Ram, Talib Hussain, Sardar Ali, Mohd. Bashir and Rafiq, are jus near the place of occurrence. Deceased had a head injury also. 6 PW Sansar Chand. He had admitted the correctness of sketch map EXPW-SC and revenue extract khasra girdawari EXPW-SC1. 7. PW. Pawan Abrol. He is the expert. He has examined the viscera of deceased. He has found Ethyl Alcohol in the viscera. He had admitted the correctness of EXPWA. In cross-examination he says that it could be a case of over does of alcohol. 8. PW Mohd. Iqbal. He has investigated the case partly. He admits having prepared the sketch map EXPW-M1. He also admits having seized two stones on the identification of Mst. Salima Bibi, through seizure memo EXPW-SB. In cross examination he says that seized stones had a chit fixed on them, but the stones shown to him in court had no such chit. Seized stones were not blood stained. 9. PW Dr. V.K.Dubey. He says that on 10th January, 196, he was the Associate Professor Government Medical College Jammu and HOD Pathology. Dr. B.R.Sharma sent a specimen of heat weighing 300 gms. All valves of which appeared to be grossly normal, Aorta shows numerous fatty streaks. The wall of left coronary artery appears to be thickened. So was the wall of right coronary artery and Lumina of both arteries was narrowed. As per microscopic examination of sections from left ventricle of heart show focal areas of myocardial fibrosis along with hypertrophy of the cardiac myocytes. Numerous giant cells are also seen. Left coronary artery and its interior-descending branch show evidence of marked atherosclerosis leading to narrowing by about 50%. The right coronary artery narrowing was by about 30%. The witness has admitted correctness of his report EX PW VK. In cross examination he says that Alcohol can’t be directly connected with myocardial infraction. Alcohol is not the only reason to cause heart attack. 10. The right coronary artery narrowing was by about 30%. The witness has admitted correctness of his report EX PW VK. In cross examination he says that Alcohol can’t be directly connected with myocardial infraction. Alcohol is not the only reason to cause heart attack. 10. Mohd Iqbal ASI has stated that he was posted as HC in police Nagrota on 19.4.1995; he has conducted PART investigation in case FIR NO.135/95; site plan dated 19.10.1995 is in his handwriting and bears his signature; it is exhibited as EXPW-MI; on identification of salima Bibi he seized two stones from spot; seizure memo EXPWSB bears his signature. He has seen those stones today in court. On cross examination has deposed that both stones are of not same eight; one stone is quite smaller to another; he had affixed a chit with wax on stones which he seized ; there is no chit on stones which he has seen in court; so these are not those stones; the stones which he seized, there was no blood ; many other stones were lying on spot; The house of Munir Ahmed is situated at a distance of 10/15 feet from spot.He did not record the statement of Munir Ahmed and other persons of village. 11. PW Bashiran Bibi. She is the daughter of deceased. She says that a day before occurrence, her brother had a quarrel with accused. Her father had gone to Jammu. When he returned back and on reaching FRATI village, accused who were in hiding attacked him. His wife & son were also along with him. She heard the noise & rushed to place of occurrence. Accused assaulted the deceased with lathies & stone. Deceased sustained a fracture in let & arm. He had injuries on genitals as well. Deceased succumbed to injuries after three days. In cross-examination she says that police came to know about this occurrence on second day, and police came to hospital on third day. Salim, lodged the report on the next day. When she saw the victim on spot, he waylaying on the ground & accused were beating him. His father did not consume alcohol. A number of people came on spot. When she reached on spot, accused were running away. This is only prosecution witnesses. The statements of accused were recorded under section 342 Cr.P.C, where they denied incriminating materials and produced defence witnesses also. His father did not consume alcohol. A number of people came on spot. When she reached on spot, accused were running away. This is only prosecution witnesses. The statements of accused were recorded under section 342 Cr.P.C, where they denied incriminating materials and produced defence witnesses also. DW Munir Ahmed says that nothing happened in his presence. Police arrested his brother. His land is adjacent to place of occurrence. Court below after hearing the prosecution, defence counsel and after appreciating the evidence acquitted the accused on various grounds. 4. We have scanned the record and have re appreciated all the evidence on record. The scope of power of appellate court in case of acquittal appeal has been highlighted by Apex Court in case AIR 2014 SC 2200 in case titled ‘Muralidhar alias Gidda & anr. v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which read as under :- “10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years. 11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. In ‘Ghurey Lal v State of U.P.’ (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above.” 5. From the perusal of challan, it reveals that prosecution has cited list of seventeen (17) witnesses in the case, out of which, eleven have been examined. 6. From the perusal of evidence on record it reveals that PW1 Salama Bibi is the wife of deceased. PW2 has not been examined. PW3 Jamat Ali is the brother of deceased. PW 4 Abdul Hamid & PW 6 Abdul Majid are the sons of deceased. PW5 has again not been examined. PW 7 Bashiran Bibi is the daughter of deceased. PW 8 Mohd. Salim is the brother-in-law. Court below while appreciating their statements have noted down many disturbing features worth notice which Court has considered so serious even that prosecution finds it as difficult to explain. 7. First feature noted by court below is place of occurrence which is pathway, in between the houses of Munir Ahmad and Nazir Ahmad and the time of occurrence was 6/7 PM; and no independent witness has been cited and examined by prosecution, although same were available. All witnesses examined have been found by court below closely related to deceased. 8. We have considered this aspect of matter and gone through the statements of witnesses. PW Abdul Hamid has stated in cross examination that there were 40/50 houses in his village and at least one from each house reached on spot. PW Jamat Ali says that Mani Ram, Nazir Ahmad, Talib Hussain, Nasib Ali, Noor , Sardar Ali, Rafiq etc. live adjacent to place of occurrence along with their families. Similarly PW Mohd. Salim has stated that a number of people came on spot, and accused fled away on seeing them. The sketch map also reveals that place of occurrence is in between the houses of Munir and Nazir. 9. The aspect of non citing independent witnesses when available can be best explained by I/O , who has not appeared in the case. Salim has stated that a number of people came on spot, and accused fled away on seeing them. The sketch map also reveals that place of occurrence is in between the houses of Munir and Nazir. 9. The aspect of non citing independent witnesses when available can be best explained by I/O , who has not appeared in the case. The court below has relied on Hon’ble High Court of J&K in 2004 KLJ Page 576-577 wherein it is held as :- “Incident took place in a shop located in an area with is densely populated and has other shops in the vicinity-None of the witnesses examined either from adjoining shops or from the locality in the area though it has been given in the prosecution evidence that many people had assembled at the place of occurrence-only eye witnesses produced were father and brother of victim-Held that non-examination of the independent witnesses despite their availability and the inaction on the part of investigating officer in not making endeavor to contact them has created serious doubts about the genuineness of the prosecution case. 10. In view of above we don’t find any incorrectness in finding of court below. 11. Next court below noted material contradictions in the statements of witnesses. Court has considered the statement of deceased Gulam Ali, given before police on the date of occurrence upon which FIR was registered. He has stated that he is a resident of village Jandial, Morah Nakheter Nallah, Tehsil and District Jammu. In the morning, he had gone to Akhnoor in connection with domestic work. After finishing his work, he was on way back to his home, at about 6/7 p.m. on reaching near the house of Munir Ahmed S/o Allah Din R/o Jandial, when he noticed that 1) Bashir Ahmed S/o Allah Baksh 2) Gh. Mustfa and 3) Allah Rakha, residents of Nakheter Nallah, hiding by the roadside. They were inimical to him. They restrained him wrongfully and launched an assault with lathies, stones, fists and feet and he got badly injured in the assault. He raised an alarm and some people came on spot and rescued him otherwise the accused would have killed him. As per his statement he was alone at the scene of occurrence i.e. none from his family accompanied him at the time of occurrence. 12. He raised an alarm and some people came on spot and rescued him otherwise the accused would have killed him. As per his statement he was alone at the scene of occurrence i.e. none from his family accompanied him at the time of occurrence. 12. But PW Salima Bibi, wife of deceased has stated that she and her son was also with deceased, at the time of actual occurrence. They made noise, when Ab. Hami, Yousuf Ali and Hanief came on spot. They rescued the deceased. Whereas son of deceased and PW Salima PW Abdul Majid has stated that he and his mother had gone to ploura and father had gone to jammu; On their way back to home, they got down from bus and started moving towards their home, accused who were in hiding attacked his father. One was having stones, while as others had lathies. They attempted to rescue the victim from accused. He and his mother raised an alarm. His sister Bashiran, Ab. Hamid, Mohd. Latief and Mohd. Hanief came on spot and accused ran away. 13. PW Abdul Hamid another son has stated on 18.10.1995 his father had gone to Jammu and at 6.00 pm he was on his way back to home. He was accompanied by his (witnesse’s) mother and Ab. Majid. When they reached Frati , accused who were hiding in bushes, attacked the deceased. He heard the noise at his home and rushed to the place of occurrence. He found accused Bashir Ahmad and Gh. Mustfa, carrying lathies and assaulting the deceased. Accused Allah Rakha, accused was carrying stones. A noise was raised when a number of people gathered on spot and accused fled away. Deceased suffered fracture in both of his arms and also sustained injuries in legs and chest as well. He had injuries on his genitals also. In cross-examination he says that place of occurrence is 2/2-1/2 kms away from his house. He makes it more clearly by saying that the place of occurrence is as far from his house as MUBARAK MANDI is from JEWEL CHOWK, which must be around 2-1/2 to 3 kms distance. He was first to reach on spot, and when he reached on spot deceased had already fallen to ground. 14. He makes it more clearly by saying that the place of occurrence is as far from his house as MUBARAK MANDI is from JEWEL CHOWK, which must be around 2-1/2 to 3 kms distance. He was first to reach on spot, and when he reached on spot deceased had already fallen to ground. 14. PW Jamat Ali the brother of deceased in cross examination he says that when noise was raised he, PW Salima (wife of deceased) and his sons A. Hamid and Ab. Majid were sitting in the house of deceased, and on hearing the noise, they rushed to place of occurrence, and he was first to reach there. Two/three minutes later reached Ab. Hamid and Ab. Majid and last of all reached Salama. 15. Court below has disbelieved the presence of related witnesses on spot at the time of occurrence because all the witnesses have given different version. Deceased has given a statement on the date of occurrence that he was alone at the time of occurrence and none from his family members accompanied him. But PW Salima Bibi, his wife, has stated that she and her son Abdul Majid were with the deceased at the time of occurrence. They made a noise and Abdul Hamid, Yousuf Ali and Hanief came on spot. If statement of deceased is considered, then presence of PW Salima Bibi and his son Abdul Majid become doubtful. PW Jamat Ali, who is also a related witness, has stated in cross-examination that when noise was raised, he, PW Salima Bibi and his sons Abdul Hamid and Abdul Majid were sitting in the house of the deceased and on hearing the noise, they rushed to the place of occurrence and he was first to reach on spot. He has also stated 2/3 minutes later, Abdul Hamid and Abdul Majid came on spot and lastly PW Salima Bibi came on spot. So in case, the statement of this witness is believed, then the presence of PW Salima Bibi and her son Abdul Majid on spot become doubtful. As per this witness, Talib Hussain, Allah Din, Munir Ahmad, Nazir Ahmad and Nasib Ali came on spot first and they rescued the deceased from the clutches of accused persons. In this way, this witness belies Jamat Ali, who says that none else except Salima Bibi and the sons of deceased came on spot. As per this witness, Talib Hussain, Allah Din, Munir Ahmad, Nazir Ahmad and Nasib Ali came on spot first and they rescued the deceased from the clutches of accused persons. In this way, this witness belies Jamat Ali, who says that none else except Salima Bibi and the sons of deceased came on spot. PW Bashiran Bibi, who is the daughter of deceased, posed herself as eye witness and has stated in court that she too was present on spot, but no prosecution witness testified that she was also on spot. 16. We have also appreciated this aspect of matter, we did find any fault in this regard also, because all the witnesses who have deposed about actual occurrence are from within the family and above contradiction on material points make their presence on spot, at the time of occurrence doubtful. There has been a deliberate effort on the part of I.O. to keep the independent witnesses out and has any how managed to arrange the witnesses from the family of deceased. Court below has refered (2003) 10 SCC 74 , where the apex Curt, observed as:- “---------------------------------------------------------------------------------------------------------------------------- The fact that other eye witnesses are partisan witnesses cannot be ruled out. Hence any other independent witnesses not having been examined, even though available, further support the suspicion as to the presence of these witnesses at the time of incident.” 17. Court below has also taken note of argument of prosecution that statement of deceased on day of occurrence on 18.10.1995 by police upon which FIR was lodged was his last statement and could be treated as Dying declaration. 18. As per law statement by a person who is conscious and knows that death is imminent concerning what he or she believes to be the cause or circumstances of death that can be introduced into evidence during a trial in certain cases. A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie. As a result, it is an exception to the Hearsay rule, which prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial, because of its inherent untrustworthiness. As a result, it is an exception to the Hearsay rule, which prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial, because of its inherent untrustworthiness. If the person who made the dying declaration had the slightest hope of recovery, no matter how unreasonable, the statement is not admissible into evidence. A person who makes a dying declaration must, however, be competent at the time he or she makes a statement, otherwise, it is inadmissible. A dying declaration is usually introduced by the prosecution, but can be used on behalf of the accused. Word “Dying Declaration” means a statement written or verbal of relevant facts made by a person, who is dead. It is the statement of a person who had died explaining the circumstances of his death. This is based on the maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with lie on his mouth. Our Indian law recognizes this fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.’ It is an exception to the principle of excluding hearsay evidence rule. Here the person (victim) is the only eye-witness to the crime, and exclusion of his statement would tend to defeat the end of justice. 19. Section 32 of Evidence Act reads as under : Section 32: Cases in which statements of relevant fact by person who is dead or cannot be found.—statement, written or verbal, or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expanse which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When it relates to cause of death. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under exception of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 20. In present case, the statement of deceased has been recorded after occurrence on 18.10.1995 and than FIR was lodged; thereafter deceased died on 20.10.1995. There is no further statement of deceased. 20. In present case, the statement of deceased has been recorded after occurrence on 18.10.1995 and than FIR was lodged; thereafter deceased died on 20.10.1995. There is no further statement of deceased. The alleged dying Declaration in this case has been recorded by Investigating Officer, with a thumb impression of maker/deceased. 21. As already held dying declaration should inspire the confidence of court that it has actually been made by deceased in fit state of mind. It has to be appreciated along with other attending circumstances. PW Abdul. Hamid has stated in cross examination that deceased fell unconscious on spot, and he died in the same state. He did not talk, nor did he move. If this fact is considered than how could the dying declaration is recorded. 22. Whereas PW Salima Bibi the wife of deceased has stated that after occurrence deceased was taken to Police station and report was lodged; PW Abdul Majid has stated deceased sustained injuries on chest, back ,beely and legs. PW Mohd. Salim has stated that deceased was taken to police station from where he was taken to GMC. 23. From the perusal of these statements and available record in file it is evident that deceased remained alive for two days after receiving injuries as occurrence took place on 18.10.1995 and he died on 20.10.1995. Had he been conscious a dying declaration could have been recorded by I/O after getting certificate of fitness of deceased and in presence of magistrate, doctor and witnesses? Court below has also held that one statement of deceased had been recorded in hospital as per wife of deceased Mst. Salima, which has been suppressed by prosecution. We have gone through the statement of this witness. She has stated that statement of deceased was recorded in hospital, when his condition deteriorated, in presence of doctor and SHO, which was signed by deceased, Doctor and SHO, but no such statement is on record. 24. Had it been so it could truly be a Dying Declaration but either it has been suppressed or no such statement was ever recorded. I/O has not been examined so this aspect of matter remained suspicious. Further, initial statement the alleged dying declaration which is a written document has not been proved, because neither subscriber of statement nor copy report no. 20 of Roznamcha of P/P Ghrota has been proved. 25. I/O has not been examined so this aspect of matter remained suspicious. Further, initial statement the alleged dying declaration which is a written document has not been proved, because neither subscriber of statement nor copy report no. 20 of Roznamcha of P/P Ghrota has been proved. 25. Court below has thus rightly repelled the argument of prosecution by cogent manner in treating the initial statement of deceased as dying declaration. Court below has also finds contradiction between ocular version and Medical evidence. As per eye witnesses i.e. PW Salima and Ab. Hamid, the deceased sustained injuries in his genitals and head also, but the post mortem report of deceased reveals that he had no injury on genitals or head. During post mortem viscera of deceased was sent for examination and Histopathological examination of his heard was also done. Chemical analysis of viscera was done by PW Pawan Abrol, and his report EXPW-PA is on record. He examined contents and part of intestines, spleen and kidney, stomach etc. His conclusion was that ETYHLE ALCOHAL was found in viscera. While deposing in court, he says that it could have been a case of overdoes of alcohol. PW V.K. Dubey, has conducted the histopathological examination of heard of deceased. He has observed that right & left coronary artery of deceased were narrowed by 50% and 30% respectively. He was observed to a old healed my-cordial infraction, and he had suffered a heart attack earlier also. Alcohol is not the only reason to cause heart attack. 26. So from this report, it is evident that deceased had a heart ailment and had even consumed alcohol before death, which was still indigested. Forensic Science expert says that it could be a case of overdose of alcohol. So a person (deceased) who had already suffered a Heart attack, had consumed alcohol, and as per the doctor conducting post mortem, death was due to shock as a result of coronary artery disease precipitated by stressful condition caused by multiple injuries. 27. In this way court below has rightly held that injuries on the person of deceased were not the cause of his death, because none of them was so serious in nature. 28. Another flaws found by trial court in prosecution case is that cause of death has not been proved. Accused persons were facing charge of having inflicted injuries on deceased, which precipitated his death. 28. Another flaws found by trial court in prosecution case is that cause of death has not been proved. Accused persons were facing charge of having inflicted injuries on deceased, which precipitated his death. Post mortem report has not been proved, because Doctor who conducted postmortem of body of deceased ,has not been produced. Similar is the case with the investigating officer Pw 16, but he too has not entered the witness box, for the reasons not known. Court held that I.O had to offer explanation on so many aspects but he did not depose and so prejudice has been caused to defense. We have gone through this aspect of matter. Postmortem report was vital piece of document; it has to be proved like any other document by calling Doctor. It is primary piece of evidence. 29. Law is very much clear that where prejudice is caused to defense, than non examination of I/O and Doctor are fatal for prosecution. 30. All the documents in challan have to be proved as per chapter V of Evidence Act, otherwise challan is mere a piece of paper without any legal values. 31. The courts while appreciating the evidence in criminal cases have to see the degree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused, Court should not go on convicting the accused. 32. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. As held in ‘Sarwan Singh Rattan Singh V. State of Punjab’ AIR 1957 S.C. 637 , there is inevitably long distance to travel between ‘may be true’ and ‘must be true’. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 33. Thus, following the well known cardinal principles of law in appreciating the facts of the present case, we do not find any compelling or substantial reason for disturbing the well-reasoned judgment returned by the learned trial Court after appreciating the entire material evidence on record. 34. 33. Thus, following the well known cardinal principles of law in appreciating the facts of the present case, we do not find any compelling or substantial reason for disturbing the well-reasoned judgment returned by the learned trial Court after appreciating the entire material evidence on record. 34. Viewed, thus, finding no merit in the appeal on hand filed by the State, the same is dismissed.