JUDGMENT : RAKESH KUMAR, J. 1. The present Appeal under Section 372 of the Code of Criminal Procedure , 1973 (hereinafter referred to as the “Cr.P.C.”) was earlier filed against judgment dated 2nd June, 2010 passed by Sri Krishan Kumar Agrawal, learned Additional District and Sessions Judge, Fast Track Court-III, Gaya (hereinafter referred to as the “trial judge”) whereby the learned trial judge acquitted respondent no. 2 from charges of Section 302/34, 380, 452 of the Indian Penal Code, 1860 (hereinafter referred to as the “I.P.C.”) and Section 27 of the Arms Act, 1959 (hereinafter referred to as the “Arms Act”). 2. The Appeal was firstly taken up for hearing at the point of admission on 22.07.2010 and after going through the judgment of the trial court a Co-ordinate Bench of this Court finding good grounds for passing order of acquittal dismissed the Appeal in limine, however, against rejection of Appeal, the informant, who is appellant in the present case, preferred an Appeal before the Hon’ble Supreme Court vide Special Leave to Appeal (Crl) No. 9157 of 2010. The Hon’ble Supreme Court considering the fact that judgment of rejection of Appeal was having no reason, considered the judgment as cryptic and allowed the Appeal after setting aside the impugned judgment i.e. the order dated 22.07.2010 passed in the present Appeal and the Hon’ble Supreme Court remitted back the matter to this Court for its disposal. Thereafter, on 24.11.2016 the Appeal was admitted for hearing, lower court record was called for and bailable warrant of arrest for Rs. 10,000/- (Ten thousand) was issued against respondent no. 2. It was observed as follows: “The respondent no. 2 shall execute a bail bond of Rs. 10,000/- (Ten Thousand) with two sureties each of the like amount, subject to the satisfaction of learned Additional District & Sessions Judge, F.T.C.-III, Gaya in connection with Sessions Trial No. 541 of 2009/88 of 2007(S.J.) (arising from Bodh Gaya P.S. Case No. 100 of 2005)”. Whereafter respondent no. 2 has entered his appearance. It is evident that respondent no. 2 was put on trial in Sessions Trial No. 541 of 2009/88 of 2007 (S.J.) (arising out of Bodh Gaya P.S. Case No. 100 of 2005). Whereafter respondent no. 2 has entered his appearance. It is evident that respondent no. 2 was put on trial in Sessions Trial No. 541 of 2009/88 of 2007 (S.J.) (arising out of Bodh Gaya P.S. Case No. 100 of 2005). However, after examining entire evidence including defence evidence, the learned trial judge passed judgment of acquittal assigning detailed reason by its judgment dated 2nd June, 2010 which is under challenge in the present Appeal. 3. At the very outset, it is necessary to indicate that against judgment of acquittal there is very limited scope for this Court to examine the evidence, which has already been examined by the trial court and a finding has been recorded. If there is apparent perversity or it was a case of passing judgment contrary to the record, then in that event certainly judgment of acquittal was required to be interfered with. Before proceeding, we have minutely examined the entire judgment of the trial court and after going through the same prima facie we are of the opinion that there is no perversity in the judgment. However, since the matter was remitted back to this Court by the Hon’ble Supreme Court, this Court has examined entire evidences, which were brought on record during the trial. 4. Short fact of the case is that on 10.09.2005 in the morning a written complaint was filed by the present appellant namely Manoj Kumar Yadav addressed to the Officer- in- charge, Bodh Gaya Police Station. In the written report the informant/appellant stated that in the preceding night i.e. on 09.09.2005 at 11.30 P.M. he had gone to sleep along with Dharmendra Sao (P.W.1) on two different beds in his dallan (open area). His father was sleeping in a room opposite to Dallan where informant along with Dharmendra was sleeping. He disclosed that at the time of sleeping they were discussing regarding sale of tractor and other domestic issues. In the night at about 2-2.30 A.M. they awoke after hearing barking of dogs. Thereafter, he removed cloth sheet from his face and saw about nine accused persons carrying country made pistol, gun etc. He was frightened. However, the accused persons came nearer to him and tried to remove three rings from his fingers. However, due to fear he himself removed three rings and handed over to accused. Thereafter, he removed cloth sheet from his face and saw about nine accused persons carrying country made pistol, gun etc. He was frightened. However, the accused persons came nearer to him and tried to remove three rings from his fingers. However, due to fear he himself removed three rings and handed over to accused. The informant further disclosed in the written report that he was wearing a Titan golden colour watch which was also taken by the accused. He disclosed that he had purchased the said watch about four years back. Thereafter, accused persons from beneath his bed taken his mobile of Samsung company having SIM No. 9431255945. Subsequently, accused persons from Dallan entered inside room where his father was sleeping and by force they took key of almirah and opening the almirah (locker) they took about 15,000/- cash and they also forcibly taken a watch from the hand of his father. The informant disclosed that at that very time electric light (bulb) was ON and in the said light he identified all the accused persons. Amongst them one of the accused was Rajesh Yadav (respondent no. 2) who was carrying a country made pistol in his hand. The informant further disclosed that this accused was trying to conceal himself from the informant. The informant further stated that two accused persons had wrapped gamcha on their faces. Amongst them he could identify one accused by his voice and height who was Jagarnath Yadav. He claimed to identify other accused persons if they shown to him. After some time the accused persons locked the informant and Dharmendra Sao (P.W. 1) in the room of Dallan and carried his father. After about five minutes the informant after breaking khaprail roof anyhow came out and thereafter he also paved way to Dharmendra Sao for coming out from the said room. He claimed that he raised alarm but due to fear none other person came out nor Sidhnath Sao whose house was opposite the Dallan opened his door. The informant further stated in the written report that accused persons were enquiring about the seven round rifle, however, he did not give any clue. He suspected that after taking his father the accused persons had gone to the house of his father in search of rifle. The informant further stated in the written report that accused persons were enquiring about the seven round rifle, however, he did not give any clue. He suspected that after taking his father the accused persons had gone to the house of his father in search of rifle. Due to this reason he along with Dharmendra Sao (P.W.1) from Dallan straight away went to his house and enquired as to whether his father had come or not. Subsequently, carrying his licensee rifle with his brothers and other co-villagers started to search for his father. In the said search some persons had also gone on Hero Honda motorcycle. However, during whole night no information could be gathered. In the morning at about 5.45 A.M. he went to Police Station for giving information as to how in the night at 2-2.30 his father was taken away by accused persons. In the meanwhile, one Mithilesh Yadav (not examined) came on motorcycle and informed that dead body of his father was lying besides road near Atiya Pul and he was having gun shot injury on his head. Due to said fire arm injury part of head was separated. He claimed that Rajesh Yadav (respondent no. 2) who was a dreaded criminal with the help of his associate Jagarnath Yadav and others with a view to kill his father had taken his father from dallan and thereafter he was done to death by giving fire arm injury. He also gave some description of some of the accused persons. On the basis of the said written report on the same day i.e. on 10.09.2005 at 5.45 A.M. a formal F.I.R. vide Bodh Gaya P.S. Case No. 100 of 2005 was registered for offence under Sections 452/380/302/34 of the I.P.C. and Section 27 of the Arms Act against Rajesh Yadav (respondent no. 2) and Jagarnath Yadav. After registering F.I.R. the case was investigated and finding the case true against Rajesh Yadav (respondent no. 2) on 04.01.2007 charge- sheet was submitted keeping investigation open against others. On the same day i.e. on 04.01.2007 learned Chief Judicial Magistrate took cognizance of offences. Surprisingly on the same day i.e. on 04.01.2007 provisions under Section 207 of the Cr.P.C. was shown to be complied and on the same day i.e. on 04.01.2007 case was committed to the court of Sessions and thereafter, it was numbered as Sessions Trial No. 88 of 2007. Surprisingly on the same day i.e. on 04.01.2007 provisions under Section 207 of the Cr.P.C. was shown to be complied and on the same day i.e. on 04.01.2007 case was committed to the court of Sessions and thereafter, it was numbered as Sessions Trial No. 88 of 2007. On 24.04.2007 charges were framed against respondent no. 2 for commission of offences under Sections 302/34, 380, 452 of the I.P.C. and Section 27 of the Arms Act. 5. To prove its case from the prosecution side altogether eight witnesses were examined. Out of eight witnesses P.W.1 (Dharmendra Sao) and informant-P.W.6 (Manoj Kumar Yadav) who is appellant before this Court have claimed to be eye witness to the occurrence, whereas, P.W.2 (Sahdeo Yadav), P.W.3 (Ramdhani Yadav), P.W.4 (Mahender Kumar-one of the sons of the deceased), P.W.5 (Pramod Kumar - another son of the deceased) were examined as hearsay witness. P.W.7 (Dr. Arvind Prasad) on 10.09.2005 was posted as Professor-cum-HoD, A.N.M.M.C.H., Gaya and on the same day he conducted postmortem examination on the dead body of father of appellant namely: Rameshwar Yadav and found the following ante-mortem injuries :- “(1) One wound of entry 1”x1/2”x cavity deep with split of scalp in triangular fashion at 2, 6, 10 O’clock position of ½” each was found over back of head ½” middle of head line and 4” below occipital protibrance with tatooing over back of neck and left side of neck 3” below wound of entry. Fracture with inward dislocation of underlined portion of occipital bone present. (2) Exit wound 6”x5”x crevinial cavity deep with fracture and dislocation (outward) of right perital, temporal and occipital bone present over right side of head. Most of the dislocated bones were missing. Brain was exposed and lacerated. Part of brain was missing. Infracravial haemorrage was found. No bullet or pillet was found. Time since death within 12 Hrs. Cause of death is shock and haemorrage by injury to head by fire arm.” He also proved the post -mortem examination report, which was marked as Exhibit- 3. As per evidence of P.W. 7 fire arm injury was found on the person of the deceased. P.W.8 (Beda Nand Mishra) had drawn formal F.I.R. and also investigated the case. Cause of death is shock and haemorrage by injury to head by fire arm.” He also proved the post -mortem examination report, which was marked as Exhibit- 3. As per evidence of P.W. 7 fire arm injury was found on the person of the deceased. P.W.8 (Beda Nand Mishra) had drawn formal F.I.R. and also investigated the case. During investigation he had examined both place of occurrence i.e. the room where deceased was sleeping in the night of the occurrence and another place of occurrence which was about 500 yards away from the room i.e. beside the road near Atiya bridge. During evidence from the prosecution side signature of informant on the written report was got exhibited as Exhibit-1, signature of informant on protest petition was marked as Exhibit-2, signature of learned Advocate on protest petition was marked as Exhibit- 2/1, signature of investigating officer on F.I.R. was marked as Exhibit-2/2 and post -mortem examination report was marked as Exhibit-3. However, neither seizure list nor inquest report was brought on record by way of exhibiting the same. After conclusion of prosecution evidence, on 2.7.2009 evidences and circumstances collected during trial against respondent no. 2 was explained to him and his statement under Section 313 of the Cr.P.C. was recorded. It would be appropriate to re-produce the 313 Cr.P.C. statement of respondent no. After conclusion of prosecution evidence, on 2.7.2009 evidences and circumstances collected during trial against respondent no. 2 was explained to him and his statement under Section 313 of the Cr.P.C. was recorded. It would be appropriate to re-produce the 313 Cr.P.C. statement of respondent no. 2 recorded during trial as follows:- iz'u& vkius xokgksa dk C;ku lquk gS mRrj& th gkWA iz'u& vkids fo:) lk{; gS fd fnukad&09-09-05 dks jk=h 2-30 cts eukst dqekj ;kno oYn jkes'oj ;kno xzke&dksygkSjk] Fkkuk cks/kx;k] ftyk&xk ls mlds ?kj ikl ls fiLrkSy dk Hk; fn[kk dj mlds gkFk ls lksus dk rhu vaxqBh ,d VkbVu xksYMsu dyj dk ?kM+h ,oa mlds fcLrj ds uhps ls lSelax dEiuh dk eksckby Nhu fy;k gS mlh le; fQj mlds nyku esa ?kqldj vyehjk ls 15]000 :i;k fudky fy;kA D;k dguk gS mRrj& th ughaA iz'u& mlds ckn mlh nyku ls jkes'oj ;kno oYn Lo0 fo'kquh ;kno xzke dksygkSjk] Fkkuk & cks/kx;k] ftyk & x;k dks ckgj ys tkdj vfr;k iqy ls iwoZ xksyh ekj dj gR;k dj fn;k FkkA D;k dguk gS mRrj & th ughaA iz'u& lQkbZ esa D;k dguk gS mRrj& th ugha funksZ”k gSA Thereafter, from the defence side altogether six witnesses were examined who are: D.W.1 (Baishakhi Manjhi), D.W. 2 (Satyan Narain Yadav), D.W. 3 (Gajadhar Yadav), D.W. 4 (Ramashish Yadav), D.W.5 (Prabhu Yadav), D.W.6 (Sarju Singh). From the defence side in sum and substance a stand was taken that though they had assembled at the second place of occurrence where dead body was found, but they had not heard anything regarding involvement of any of the accused by name. 6. Sri Sanjay Kumar, learned counsel for the informant/appellant after placing entire evidence has argued that the learned trial judge has committed serious error in passing judgment of acquittal. Sri Sanjay Kumar, learned counsel for the appellant has specifically referred to the impugned judgment to highlight regarding the absurdity in the judgment. 7. Besides trying to persuade the Court that judgment of the trial court was perverse, he has also argued that in the case there were two eye witnesses i.e. P.W. 1 & P.W. 6 and their evidence was sufficient to come to the conclusion that in the case respondent no. 2 along with other accused persons had forcibly taken away father of the informant/ appellant. 2 along with other accused persons had forcibly taken away father of the informant/ appellant. Of –course, it was admitted that there is no witness on the point of seeing the second occurrence regarding killing of his father, it has been argued that once it was established that father of appellant was taken away by accused persons and amongst them respondent no. 2 was identified and subsequently dead body of father of informant was found, only this inference would have been drawn that his father was done to death by respondent no. 2 with his other associates. Accordingly, it has been argued that judgment of acquittal is liable to be set aside and altered with conviction and sentence of respondent no. 2. 8. Sri Ansul, learned counsel, assisted by Sri Manish Kumar No. 2, learned counsel appearing on behalf of respondent no. 2 has argued that in Appeal against acquittal unless there is any perversity in the judgment, this Court may refrain from interfering. He submits that at the time of hearing of such Appeal this Court may not weigh entire evidence, which has already been examined by the trial court and a finding has been recorded. He further submits that it is not the case of informant/appellant that learned trial judge has recorded his findings contrary to the evidences which were brought on record, and as such, he submits that under limited scope this Court may not interfere with the judgment impugned. He highlights that though from defence side six witnesses had been examined, this Court may not place much reliance on those evidence, but on the basis of prosecution evidence itself it is demonstrated that prosecution has miserably failed to established its case, and as such, the learned trial judge has rightly passed judgment of acquittal, which requires no interference. 9. Besides hearing learned counsel for the parties, we have also minutely examined entire evidence on record. The Court is aware that at the time of hearing Appeal against acquittal we may not record different finding on the same evidence which has already been done by trial court, but it is to be examined as to whether finding of the trial court has been recorded contrary to the evidences on record or judgment is perverse. The Court is aware that at the time of hearing Appeal against acquittal we may not record different finding on the same evidence which has already been done by trial court, but it is to be examined as to whether finding of the trial court has been recorded contrary to the evidences on record or judgment is perverse. We have examined the judgment of the trial court and after going through the same we are of the considered opinion that learned trial judge after weighing entire evidence has rightly passed judgment of acquittal. Besides this, on examining entire evidence we are also of the view that in any event, there was no reason to pass judgment of conviction and sentence against respondent no. 2. It is case of the prosecution that respondent no. 2 was well known to the informant’s side. This fact has been admitted by P.W. 6 who is the appellant before this Court i.e. Manoj Kumar Yadav in paragraph no. 12 of his cross- examination in which he has admitted that both the accused i.e. respondent no. 2 and one Jagarnath Yadav were well known to him since much prior to the occurrence. He further in paragraph no. 34 of his cross-examination has stated that residence of respondent no. 2 was only one Kilometer away from the house of informant/appellant. Meaning thereby, that this respondent no. 2 was well known to the informant. Similarly, P.W.1 who has claimed to be eye witness in paragraph no. 27 of his cross-examination has stated that amongst accused persons who had surrounded them he identified respondent no. 2 (Rajesh Yadav) and one Jagarnath Yadav who were known to him since prior to the occurrence. In normal course, if respondent no. 2, who was well known to informant’s side, had gone with intent to kill the father of informant in odd time in between 2-2.30 in the night certainly he would have concealed his face by wrapping any cloth on his face, but contrary to this, the witnesses particularly P.W. 1 and P.W. 6 (informant/appellant) have said that at least respondent no. 2 had not at all taken any care to conceal his face. On the contrary one of the eye witnesses i.e. informant has said that amongst the accused persons two accused persons had concealed their faces by wrapping clothes. 2 had not at all taken any care to conceal his face. On the contrary one of the eye witnesses i.e. informant has said that amongst the accused persons two accused persons had concealed their faces by wrapping clothes. Out of two such persons he could identify one Jagarnath Yadav through his voice. It has also come during evidence that mother of respondent no. 2 and father of the informant/appellant had fought election for the post of Mukhiya earlier. Meaning thereby, that due to election dispute there was some strain relation in between the parties. In such a situation, there was also possibility of false implication in a case in which none of the accused persons were identified by either of the witnesses. Besides this, though the Court may not place much reliance on the evidence of defence witnesses, but at least those witnesses have said that they were residents of same village and they have deposed that when dead body was found none had even whispered about the identification of any of the accused persons. Besides this, the statement of accused-respondent no. 2 recorded under Section 313 of the Cr.P.C. also appears to be only completion of formalities. It is also relevant that P.W. 1 and P.W. 6 had claimed the source of identification as electric bulb, at the time of inspection of the place of occurrence, i.e. room near dallan the Investigating Officer did not notice such bulb nor he mentioned such fact in his evidence. 10. On going through the entire evidence as well as judgment of the trial court, we are of the considered opinion that the learned trial judge has committed no error and judgment of acquittal assigns detailed reason, which warrants no interference. Accordingly, the present Appeal against judgment of acquittal dated 2nd June, 2010 passed by Sri Krishan Kumar Agarwal, learned Additional District and Sessions Judge, Fast Track Court – III, Gaya in Sessions Trial No. 541 of 2009/88 of 2007 (S.J.) (arising out of Bodh Gaya P.S. Case No. 100 of 2005) stands dismissed. Since the Appeal against acquittal has been dismissed and respondent no. 2 was on bail, he is discharged from liability of bail bond.