JUDGMENT Per: Hon'ble R.C. Khulbe, J. The present appeal has been preferred by the appellant under Section 372 of the Code of Criminal Procedure, assailing the acquittal of the private respondents, under Sections 323, 302 and 504 IPC, as recorded by the Trial Court vide the impugned judgment and order dated 8.7.2012 rendered in Sessions Trial No.9 of 2006, State v. Bablu Rawat & others. 2. The facts of the case are that the complainant Tilak Singh (PW1) gave a written report (Ex.Ka-1) on 6.3.2005 at 10:30 PM at P.S. Doiwala, Dehradun to the effect that on the same day at 9:15 PM, he asked his neighbours Aadesh and Rajesh to remove their electric wire from his roof as he intended to build the second floor. On this, Rajesh, Aadesh, Bablu Rawat and Kakku at once came being armed with batons and sticks and assaulted the complainant and his father Sri Subhash Chandra with the intention to kill as a result of which his father sustained several injuries and he became unconscious on the spot while the blood was oozing out from the head of complainant and he was having pain due to the injuries on his body. On raising alarm by him, these people ran away. This incident was witnessed by complainant's mother Smt. Asha Devi, his younger sister Km. Monu and several other people of village. The complainant ran to the Pradhan, got the report scribed from him and gave the same at the Police Station. 3. On the basis of the report Ex.Ka-1, the Chick FIR Ex.Ka-21 was recorded by the police. The inquest report was prepared which is Ex.Ka-7. The police took the injured to the hospital. 4. PW5 Dr. Mohit Goyal medically examined the injured Tilak Singh on 6.3.2005 at 11:15 PM and prepared the injury report Ex.Ka-3. On 7.3.2005 at 12:30 AM, he examined the injured Subhash and prepared his injury report Ex.Ka-4. 5. However, Tilak Singh, father of complainant succumbed to his injuries. The post-mortem on the body of deceased was conducted on 08.03.2005 at 10:00 A.M. by PW4 Dr. Ajeet Gairola. In the post-mortem report (Ex.Ka-2), the following ante-mortem injuries were found on the body of deceased: - A. Abrasion size 1 cm x 0.5 cm on the left leg. B. Abrasion size 1 cm x 0.5 cm on the left elbow. The post-mortem on the body of deceased was conducted on 08.03.2005 at 10:00 A.M. by PW4 Dr. Ajeet Gairola. In the post-mortem report (Ex.Ka-2), the following ante-mortem injuries were found on the body of deceased: - A. Abrasion size 1 cm x 0.5 cm on the left leg. B. Abrasion size 1 cm x 0.5 cm on the left elbow. C. Linear abrasion 2 cm x 0.5 cm, 2 cm below injury no.2. D. Multiple abrasions on lower back portion in the size of 5 cm x 2 cm. E. Abrasions size 4 cm x 1 cm on the back of chest. F. Contusions size 6 cm x 3 cm on right side of head. Blackening was present. G. Contusion 4 cm x 3 cm on right side of head. Blackening was present. H. Abrasion size 4 cm x 1 cm on the forehead. Cause of death of deceased was shock and hemorrhage due to serious head injuries. 6. On culmination of investigation, the police submitted a charge-sheet against all the four accused persons. 7. The case was committed to the Court of Sessions, Dehradun. Learned Sessions Judge transferred the case to the Additional Sessions Judge, who, vide order dated 16.5.2006, framed the Charge against the accused under Sections 323/34, 302/34 and 504/34 IPC. The accused pleaded not guilt and claimed to be tried. 8. To prove its case, the prosecution has examined as many as 11 witnesses, who are, PW1 Tilak Singh, PW2 Mona, PW3 Smt. Asha, PW4 Dr. Ajit Gairola, PW5 Dr. Mohit Goyal, PW6 Jai Pal Singh, PW7 Hoshiyar Singh, PW8 Satyaveer, PW9 S.I. Satya Devi, PW10 Anand Prakash and PW11 S.I. Ram Pal. 9. Thereafter, the statements of accused were recorded under Section 313 Cr.P.C. No oral or documentary evidence was produced by them in defence. 10. Learned Additional Sessions Judge/ Second FTC, Dehradun, vide the impugned judgment, has acquitted the accused from the charges levelled against them. It is necessary to mention here that against the impugned judgment neither the complainant- Tilak Singh nor the State Government have filed any appeal to challenge it. 11. We have heard the learned Amicus Curiae for the appellant-Mona and learned counsel for the accused and perused the record and judgment. 12. Before proceeding any further, it is necessary to consider the powers of the Appellate Court given in Section 386 of Cr.P.C., which reads as under: - “386. 11. We have heard the learned Amicus Curiae for the appellant-Mona and learned counsel for the accused and perused the record and judgment. 12. Before proceeding any further, it is necessary to consider the powers of the Appellate Court given in Section 386 of Cr.P.C., which reads as under: - “386. Power of the Appellate Court. 11. We have heard the learned Amicus Curiae for the appellant-Mona and learned counsel for the accused and perused the record and judgment. 12. Before proceeding any further, it is necessary to consider the powers of the Appellate Court given in Section 386 of Cr.P.C., which reads as under: - “386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." 13. Now, we would like to advert to the prosecution evidence. 14. The informant PW-1 Tilak Singh stated that on 06.03.2005 at about 9:00 PM when he asked the accused to remove the electricity wires over the roof of the complainant, the accused started abusing and by the sticks and pipe held by them, they committed marpeet with them. Due to this, he and his father Subhash Chandra sustained grievous injuries and his father Subhash Chandra became faint. Thereafter his sister and mother Asha Devi reached at the spot. After the incident he went to Gram Pradhan Anand Dhashmana and lodged a report. The police personnel took us to the hospital where they were medically examined. On the next day his father succumbed to the injuries. 15. PW-2 Mona testified that on 06.03.2005 at about 9:15 PM she along with her parents were at home. Her brother Tilak Singh was asking Adesh to remove the electricity wires from his roof as Tilak Singh intended to build the second floor. Accused Adesh started abusing. Her father came at the spot. Then accused Rajesh, Bablu and Papu Gorakha also came there. Accused Rajesh and Adesh attacked her father and brother with sticks and iron rod. Her father and brother sustained grievous injuries. 16. PW-3 Smt. Asha Devi did not support the prosecution case and was declared hostile. 17. PW4 Dr. Ajit Gairola examined the dead body of deceased Subhash. The body of the deceased had ante mortem injuries, as noted hereinabove. 18. PW5 Dr. Mohit Goyal has medically examined the injured Tilak and found the following injuries:- “1. Contused lacerated wound of size 0.5 cm x 7 cm over scalp situated over midline, starting 6 cm above eyebrow, bone deep. 2. A contusion over left lower eyelid of size 1 x 1 cm." 18. On the same day, he examined of Subhash at 12:30 A.M. and found the following injuries: - 1. “Right black eye present eyeball not ascertained due to swelling, advised x-ray skull lateral view. 2. Two lacerated wounds of size 0.5 cm x 1 cm each, 6 cm above eyebrow in midline, skin deep with contused margins. 3. A contused abrasion of size 6 x 1 cm in midline, 9 cm below lower border of scapula. Opinion- Injuries 1, 2 and 3 are fresh and caused by hard blunt object. 2. Two lacerated wounds of size 0.5 cm x 1 cm each, 6 cm above eyebrow in midline, skin deep with contused margins. 3. A contused abrasion of size 6 x 1 cm in midline, 9 cm below lower border of scapula. Opinion- Injuries 1, 2 and 3 are fresh and caused by hard blunt object. Injury nos.1 and 2 are grievous and no.3 is simple." 19. PW-6 Jaypal Singh and PW-7 Hosiyar Singh were declared hostile as they did not support the prosecution story. 20. PW8 SI Satyaveer Singh is a formal witness. He has proved the recovery of iron rod made at the instance of accused Rajesh. Ex.K-5 was marked on the same. 21. PW9 S.I. Satydev is the earlier I.O. of the case who recorded statement of the witnesses. He prepared site plan Ex. Ka-6 and Panchayatnama Ex. Ka-7 and later on, investigation was handed over to S.I. Rampal Singh who submitted charge sheet in the court after completing investigation. 22. PW 10 Anand Prakash is the person who scribed the FIR (Ex. Ka-1) at the instance of Tilak Singh. He was also appointed as Panch. The panchayatnama Ex. Ka-7 has been proved by him. 23. PW 11 S.I. Rampal Singh is also an I.O. of the case. He also proved the recovery memo (Ex. Ka 5) of an iron pipe recovered at the instance of accused Rajesh. 24. It is argued by learned Amicus Curiae on behalf of the appellant-Mona that at the time of recording the evidence of appellant-Mona as PW-2, she was about 13 years old and was tortured by the accused, due to which after recording her examination-in-chief, she did not support the prosecution story. Apart from that the accused also threatened PW-1 Tilak Singh due to which he too did not support the prosecution version in his cross-examination. 25. Per contra, learned counsel for the accused submitted that no such torture or threat was given by the accused to the prosecution witnesses. PW-1 Tilak Singh and PW-3 Asha Devi had also given their affidavits during investigation to the SSP and the Sessions Judge also. It is also argued by learned counsel for the accused that none of the prosecution witnesses support the prosecution story and there is no scope to interfere with the impugned judgment passed by the learned Additional Session Judge. 26. It is also argued by learned counsel for the accused that none of the prosecution witnesses support the prosecution story and there is no scope to interfere with the impugned judgment passed by the learned Additional Session Judge. 26. As per the prosecution, the incident took place on 06.03.2005 at about 9:15 PM at village Miawala and the FIR was lodged on the very same night at about 10:30 PM at Police Outpost Jogiwala, P.S. Doiwala, Dehradun. 27. As per the FIR all the accused, namely, Rajesh, Aadesh, Bablu and Kakku assaulted the complainant-Tilak Singh and his father Subhash Chandra with sticks and pipe. The prosecution produced the informant Tilak Singh as PW-1, who is also injured, but in the cross-examination, he did not support the prosecution story as narrated in the FIR and he clearly stated that he and his father asked the accused Aadesh and Rajesh to remove the electricity wire in the day time. At the place of incident it was very dark and he reached there after hearing the noise. He also stated that he could not notice who assaulted him. 28. The another star witness appellant- Mona has appeared as the PW-2, but she also failed to prove the prosecution story. She clearly stated in her cross-examination that there was no enmity with the accused at the time of incident. She was sleeping at the time of incident. She knew this fact in the next day in the morning. She did not know where the incident took place with her father and brother. 29. The third witness is PW-3 Asha Devi, who is the wife of deceased-Subhash Chandra. She clearly stated in her statement that at the time of incident, she was making food inside her house. She did not see the incident. She had no idea as to who killed her husband as she was inside the house. At the time of incident her daughter was also sleeping inside. 30. The above three star witnesses have not supported the prosecution story. The informant PW-1 Tilak Singh also sustained injuries and PW-2 Mona and PW-3 Asha Devi were the daughter and wife of the deceased respectively. At the time of incident her daughter was also sleeping inside. 30. The above three star witnesses have not supported the prosecution story. The informant PW-1 Tilak Singh also sustained injuries and PW-2 Mona and PW-3 Asha Devi were the daughter and wife of the deceased respectively. If any threatening or torturing was given by the accused then the above witnesses had a right during evidence to inform the police or the Court, but they never made any complaint regarding this till the date of decision rendered by the Trial Court. They never raised any fingers for six years. 31. Except PW-2 Mona neither PW-1 Tilak Singh nor PW-3 Asha Devi raise any alarm before the High Court. So, we cannot disbelieve the statements given by the prosecution witnesses before the Trial Court. 32. Although, an iron rod was recovered on the pointing out of the accused Rajesh in presence of PW-8 Satyaveer Singh, but the independent eye witnesses PW6 Jaypal Singh and PW-7 Hosiyar Singh did not prove the recovery memo Ex.Ka-5. As per the recovery memo Ex.Ka.5 an iron rod was recovered from the accused Rajesh, but the prosecution did not send it to the forensic science laboratory (FSL) for its examination. Without FSL report, it cannot be said that the said iron rod was used in the crime. 33. During investigation the affidavit dated 24.05.2005 given by PW-1 Tilak Singh and affidavit dated 14.03.2005 given by PW-3 Asha Devi are on record. Both the affidavits are proved by the witnesses PW-1 Tilak Singh and PW-3 Asha Devi. From the perusal of these affidavits, it is clear that the accused did not commit the present crime. 34. From the evidence adduced by the prosecution, following facts are reflected:- A At the time of occurrence there was no source of light to identify the accused persons. B There is no evidence on record as to who caused grievous injuries to PW-1 Tilak Singh and the deceased Subhash Chandra. C There is no previous enmity between the accused and the family of the informant. D PW-2 Mona (present appellant) and PW-3 Asha Devi (wife of deceased Subhash Chandra) were inside their house at the time of incident. E Appellant-Mona PW-2 was sleeping inside her house at the time of incident. F PW-3 Asha Devi (wife of the deceased) was making food inside the house. D PW-2 Mona (present appellant) and PW-3 Asha Devi (wife of deceased Subhash Chandra) were inside their house at the time of incident. E Appellant-Mona PW-2 was sleeping inside her house at the time of incident. F PW-3 Asha Devi (wife of the deceased) was making food inside the house. G It is not proved that the accused caused fatal injuries to Subhash Chandra. H It is not proved that the accused caused grievous injuries to PW-1 Tilak Singh. I No blood stained soil was taken from the spot. 10 J It is not proved that the accused had given threatening to the prosecution witnesses for giving statement in their favour. K The iron rod, which was recovered at the instance of accused Rajesh, was not sent to the FSL for its examination. L The alleged recovery was denied by the independent witnesses PW-6 Jaypal Singh and PW-7 Hosiyar Singh. M As per the FIR, the weapons used in the crime were lathi and danda, while the iron rod was recovered by the police during the investigation. 35. In the present case all the star witnesses have denied the prosecution story. 36. It is well settled principle that a suspicion, however, grave it may be, cannot take place of proof i.e. there is a long distance between “may be", and “must be" which must be traversed by the prosecution to prove its case beyond reasonable doubt. As such prosecution failed to establish foundational fact of the case. 37. In the case of Rajiv Singh Vs State of Bihar and another (2015) 16 SCC 369 , 2016 (1) NCC 563 the Hon'ble Apex court has held that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. 38. 38. The Hon'ble Apex Court in the case of V. Sejappa Vs State (2016) 12 SCC 150 , 2016 (3) NCC 27 has held in dealing with appeal against acquittal, the appellate court must bear in mind the followings:- (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 powers 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 demeanour 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 reappreciation 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." 39. From the re-appreciation and re-evaluation of the evidence, we are of the view that the prosecution has utterly failed to produce any clinching evidence against the accused persons. This Court reaches to the conclusion that the Court below has passed the impugned judgment as per law and there is no irregularity or infirmity found in the impugned judgment. The findings of lower court are neither perverse nor erroneous, but instead, are based on proper appreciation of evidence on record. Hence the present appeal has no force and liable to be dismissed. Accordingly, the present appeal is dismissed. 40. The findings of lower court are neither perverse nor erroneous, but instead, are based on proper appreciation of evidence on record. Hence the present appeal has no force and liable to be dismissed. Accordingly, the present appeal is dismissed. 40. Lower Court record be sent back.