JUDGMENT : 1. This criminal acquittal appeal has been filed by the appellant-State against the judgment dated 23.02.2011 passed by the learned Judicial Magistrate, 1st Class, Akhnoor in File No. 72/Challan titled State of J&K vs. Pidu Ram and ors, for commission of offences under Sections 323/324/341/34 RPC, FIR No. 43/2004 registered with Police Station, Akhnoor, by virtue of which court below has acquitted the accused /respondents. 2. In this appeal, appellant-State has challenged the order of acquittal on the grounds that trial court has not properly appreciated evidence on record which has resulted into acquittal of the respondents/accused persons; that there was sufficient material on record to convict the respondents/accused persons; that the prosecution had established the case against the respondents-accused persons by adducing documentary as well as oral evidence. 3. The brief facts of the case are that on 04.03.2004 at about 20:30, Police Station, Akhnoor had received a message via Telephone from SDH, Akhnoor that one person, namely, Sansar Chand has been admitted in the hospital. On getting the information Mohd.lqbal was sent to SDH Akhnoor for recording the statement of the injured person. In his statement the injured -complainant had stated that on 04.03.04, when he was returning from his field, he was obstructed on the way and the accused asked him why he has plastered his wall, the accused, namely, Pidu, Rakesh Kumar and two ladies started beating him with fists& blows and the accused Ram Lal had inflicted injuries on him by sharp edged weapon. The complainant made hue and cry and some persons from Mohalla came on spot and rescued him from the clutches of the accused persons. The investigation was conducted by Mohd.lqbal IO ; who after conducting investigation the case was not proved against the ladies accused and they were exempted from the challan during investigation. 4. The court below after conducting trial acquitted the accused /respondents on the grounds that prosecution has failed to prove its case beyond reasonable doubts. 5. The scope of power of appellate court in case of acquittal has been highlighted by Apex Court 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], reported in AIR 2014 SC 2200 , which read as under :- “10. 5. The scope of power of appellate court in case of acquittal has been highlighted by Apex Court 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], reported in AIR 2014 SC 2200 , 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. 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. 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.” 6. In criminal trial, the burden always lies on prosecution to establish the case against the accused and the accused persons are presumed to be innocent of the offence charged till the contrary is established. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. In determining the guilt of person charged with crime, onus of proving everything essential to the established of the charge against the accused persons lies on the prosecution. The evidence must be such as to exclude moral certainty, every reasonable doubt of the guilt of the accused. In the matter of doubt, it is safer to acquit to acquit the accused, because it is better that several guilty person should escape than that one innocent person suffer. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. The weakness in defence established by the accused persons is no help to prosecution, because the prosecution has to prove its case beyond all shadow of doubt. Mere creation of suspicion is not enough. 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. 7. The fact in issue can be established by direct evidence or by indirect evidence. 8. Mere fact that eye witnesses have spoken against the accused before court would not be enough to convict a person in criminal offence. There are certain cardinal principles of criminal law enumerate from time to time by Apex court and High Court, while dealing with such cases. 9. Before re appreciating the evidence on record the brief resume of the complainant-Sansar Chand and prosecution witnesses reads as under:- Statement of complainant namely; Sansar Chand: In his examination in chief, he has stated that the accused Pidu Ram and Rakesh Kumar were known to him, whereas he did not know the name of the accused Ram Lal but he can identify him if he is brought in the court, so his statement was deferred. On 10-11-2004, his statement was again recorded in the court where he had stated that on 04-03-2004, when he was coming back from the field at 7-7:15 p.m. he saw the accused Ram Lal was breaking the plaster of his wall, he enquired from the accused Ram Lal who inflicted injury on his head, right arm with parthi and rest of the accused also inflicted injuries to him with lathies and he made noise. Ravi Kumar and Bodh Raj PWs arrived there and the accused fled away. PWs Ravi Kumar & Bodh Raj lifted him and went to Police Station & the Police brought the injured to the Hospital Akhnoor and after first aid the doctor referred him to GMC, Jammu. The statement of the injured was recorded on 15-03-2004 at home. The weapon of offence, Parthi was seized by the Police. In his cross-examination, he has stated that he had lodged the report orally in the PS Akhnoor and he was in full sense at that time and he had mentioned in his report the names of 5 accused and has also stated that accused Rakesh Kumar was breaking the plaster &hasalso stated that the accused Ram Lal had inflicted injuries with Parthy. He has further stated that the rest of the accused also had beaten him with lathies. He has also mentioned the names of the eye witnesses Ravi Kumar & Bodh Raj in the FIR. He has further stated that on hearing noise some persons from Mohalla reached there. The accused had inflicted injuries on all part of the body of the complainant. He has further deposed that the statement was recorded in the court on 16-08-2004, regarding not knowing the name of the accused Ram Lal was false. PW Bodh Raj is his real brother. He has also stated that the rest of the accused had beaten him with lathies and the ladies accused had beaten him with lathies and stones. Statement of PW Ravi Kumar: In his examination-in-chief he has deposed that the complainant was in injured condition & blood was oozing from his body. He does not know who had inflicted the injuries and the PW was declared hostile. In his cross-examination, the PW had stated that the clothes of the injured were blood stained. Statement of PW Ravi Kumar: In his examination-in-chief he has deposed that the complainant was in injured condition & blood was oozing from his body. He does not know who had inflicted the injuries and the PW was declared hostile. In his cross-examination, the PW had stated that the clothes of the injured were blood stained. Statement of PW Bodh Raj: In his examination-in-chief he has stated that he saw that the accused had detained the complainant in the passage, the accused were abusing him and was asking him why he had put plaster on the wall? The accused Rakesh Kumar was having lathi in his hands and the accused Ram Lal was having parthi in his land. The accused Ram Lal inflicted injury with Parthi and Rakesh Kumar with lathi. The complainant made hue and cry, the PW Ravi Kumar arrived there and they took the injured to the P/S, Akhoor and lodged report there. In his cross-examination he has admitted that the complainant is his real brother. He has also stated that in his statement u/s 161 Cr.P.C that the accused Rakesh Kumar and Pidu Ram had beaten the injured with the lathies and no weapon of offence was seized in his presence. He has also denied the statement u/s 161 Cr.P.C., regarding the accused had beaten the injured with fists and blows. The clothes of the injured were blood stained and the accused had fled away from the place of occurrence after beating. Statement of I.O. Mohd. Iqbal: - In his examination-in chief he has stated that no oral report was lodged and FIR was lodged on the statement of the complainant and the complainant never went to the Police Station for lodging the report. The I/O has stated that in his investigation, the lathies were never used at the time of occurrence. In his investigation the clothes were not blood stained and they were not seized. In his investigation it came to fore that the accused Rakesh Kumar and Pidu Ram had beaten the injured with fists & blows and the ladies had not committed any offence. Statement of PW Dr. Anil Gupta:- Three following injuries were found (i) Incised wound over right acomporal region 7.5 cmx1.2 cm bleeding. (ii) Bruise over left upper arm. (iii) Bruise over upper back. In his cross-examination, doctor had stated that injury no. Statement of PW Dr. Anil Gupta:- Three following injuries were found (i) Incised wound over right acomporal region 7.5 cmx1.2 cm bleeding. (ii) Bruise over left upper arm. (iii) Bruise over upper back. In his cross-examination, doctor had stated that injury no. I could be possible by falling on the sharp edge stone and injuries no.2 &3 could be possible by falling on hard rough surface. 10. The concluding para of impugned order dated 23.02.2011, passed by learned Judicial Magistrate, 1st Class, Akhnoor reads as follows:- “I have heard both the sides at length and also perused the material available on the record from which it reveals that the complainant of the case stands on two theories, initially he has stated that when he was returning from his field he was obstructed in his way by the accused and was questioned, why he had plastered his wall? And consequently was beaten but in his such as his own witness he had deposed that when he was coming from his field he saw that accused Ram Lal was breaking the plaster of his wall, who inflicted injuries to him. Moreover, the complainant has also stated in his FIR that ladies were also beating him but I/O has not arrayed the ladies accused in the case. The amazing fact of the case that when the complainant was called for recording his statement his statement was deferred on the pretext that he does not know the accused Ram Lal but he had mentioned his name in the FIR and when on the second occasion the statement of the complainant was recorded, he has deposed that he had deposed false statement on the previous occasion with respect to the identification of the accused Ram Lal, which casts a serious doubt on the intention and the integrity of the witness. Thirdly, the complainant has deposed that his clothes were blood stained but the I/O has stated that there were no blood stained on the clothes, so the clothes were not seized. Though, PW Ravi Kumar has deposed that the complainant was in injured condition and blood was oozing from his body, but has further deposed that he does not know who has inflicted the injury to him. PW Bodh Raj is the real brother of the complainant who has also deposed contrary to the I/O that the clothes of the injured were blood stained. PW Bodh Raj is the real brother of the complainant who has also deposed contrary to the I/O that the clothes of the injured were blood stained. From the set of evidence available on the record the evidence of the complainant and his witness is contrary to the depositions of doctor and I/O. The Case laws referred by the Ld PO does not apply squarely to the facts of the present case so is of no help to the Prosecution case. On the other hand the arguments and the points of contradictions raised by the Ld. counsel for the defence carry wait. The contradictions in the statements of the prosecution witnesses vis-à-vis the Prosecution story are not the minor contradictions which would have been over looked but are major contradictions which cast serious doubt on the Prosecution story. To uphold the conviction of the accused the Prosecution should prove their case in such a manner that the set of evidence available on the record should lead to the only conclusion that the accused have committed offence and if two pearl theories can be worked out to the extent that the accused may have or may have not committed the offence, than the theory favoring the accused should be accepted for the reason that no innocent person should be convicted. In the present case the Prosecution has following short of proving the guilt of the accused in a transparent manner and the evidence on the record is not sufficient for convicting the accused. Therefore, in the back drop of the aforesaid facts, circumstances and discussions this challan is hereby dismissed. Accused are acquitted. Their bail bonds and surety bonds stand cancelled. The file, after due completion shall be consigned to records.” 11. From bare perusal of reasoning given by trial court, while acquitting the accused, I find that these are correct and do not suffer from any illegality. Accused are acquitted. Their bail bonds and surety bonds stand cancelled. The file, after due completion shall be consigned to records.” 11. From bare perusal of reasoning given by trial court, while acquitting the accused, I find that these are correct and do not suffer from any illegality. Because only eye witness PW Ravi Kumar has not supported the version of complainant; the PW Bodh Raj is real brother of complainant though has supported the version of complainant-injured but his name is not in the FIR; further the statement of victim has been recorded after more than 11 days of occurrence, this delay has not been explained; further as per prosecution the FIR was lodged after recording statement of victim in SDH by HC after it was informed to police from SDM Akhnoor that injured has been admitted in hospital; but complainant/victim/injured has stated that he was taken to police station and then after giving oral report he was taken to hospital; this is vital contradiction. Investigation in the case has also been conducted in most perfunctory manner as blood stained clothes of injured were not seized. In view of above discussion, I am of considered opinion that judgment of court below does not suffer from any infirmity of law. 12. Appeal is accordingly dismissed.