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2020 DIGILAW 929 (GUJ)

Dilipbhai Kesubhai Odedara v. State of Gujarat

2020-11-25

J.B.PARDIWALA, VIKRAM NATH

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JUDGMENT : VIKRAM NATH, J. 1. The above two appeals, one filed by the State and the other by the complainant side, assail the correctness of the judgment and order dated 11.02.2011 passed by the learned Additional Sessions Judge, Porbandar in Sessions Case Nos.37, 38 and 39 of 2006 arising out of Crime Registration No.I-42 of 2005 registered at Kamlabaug Police Station, District Porbandar whereby all the accused have been acquitted of all the charges levelled against them under Sections 302, 307, 323, 506(2), 109, 120-B, 201 of the Indian Penal Code and under Sections 25(1)(A), 25(1) (BA) of the Arms Act and under Section 135 of the Bombay Police Act. 2. On 01.03.2005, a complaint came to be registered at 12.05 p.m. at Kamlabaug Police Station, District Porbandar being FIR No.I-42 of 2005 submitted by one Rama Kara Odedara. The prosecution case as reflected from the FIR goes as follows:- 2.1 On 01-03-2005 as the complainant and his uncle Keshu Nebha Odedara were about to go to work, they had stopped by at Kanhaiya Pan Parlour near Kadiya Plot at Porbandar as at about 10:15 hours, a blue lancer car had stopped by at Ram Guest house and coming from the car, the complainant saw Kandhal Sarman Jadeja and Kana Sarman Jadeja come outside. According to the complainant, Kandhal Sarman Jadeja was wearing a yellow-colored shirt and brown pants and Kana Sarman Jadeja was wearing a blue colored pant and light blue color shirt and both Kandhal and Kana were equipped with firearms at the time. Along with them, there were two other people, one being the driver, and the other coming from the backseat, whom the complainant, at the time had not recognized. The driver was described as having a strong built and wearing a yellow and black checkered shirt and milky colored pants. The person from the backseat was described as a lean man wearing a blue colored t-shirt. Kandhal Sarman Jadeja and Kana Sarman Jadeja came out of the car and started abusing Keshu Nebha Odedara and threatened to kill him. Keshu Nebha Odedara asked the complainant to get their Honda Motorcycle, bearing number 5033, started as he did not have any problem with them. As soon as they approached the bike, Kandhal Sarman Jadeja took out his pistol and started firing at Kesha Nebha. Keshu Nebha Odedara asked the complainant to get their Honda Motorcycle, bearing number 5033, started as he did not have any problem with them. As soon as they approached the bike, Kandhal Sarman Jadeja took out his pistol and started firing at Kesha Nebha. He fired multiple shots at Keshu Nebha’s chest and after that shot was also fired by Kandhal Sarman Jadeja at the complainant as he tried to rescue his uncle. After that the complainant was grabbed by the driver and the person sitting at the back of the car as they started hitting the complainant. Kana Sarman Jadeja also took out his pistol and started firing at Keshu Nebha Odedara as the shops around where the incident took place, started closing down due to fear. After that, the 4 people, i.e. Kandhal Sarman Jadeja, Kana Sarman Jadeja, the driver and the unrecognizable person sitting at the back of the car, ran towards Ram guest house, where they fled in their blue lancer car. As they fled, Keshu Nebha Odedara was lying covered in blood with gunshot wounds below his beard, on his chest, on his forehead and other parts of the body. Keshu Nebha was taken to the government hospital by the complainant, Karabhai Brahman, Bhikhu Kaka Odedara and Rama Nebha Odedara. 3. The injured Keshu Nebhabhai Odedara died on account of ante-mortem injuries on the same day later in the after-noon. Accordingly, Section 302 of IPC was added. The investigation was taken over by Mr. Dhanji Thakarshi Vadaliya, Police Inspector, PW-52. The Investigating Officer recorded statements of the complainant side which included the informant, the eye witnesses named in the FIR, inspected the place of occurrence, prepared the site map, made the recovery memo of all the recovered articles from the place of offence. 4. Later the Investigating Officer on 03.03.2005 took into custody from the Ahmedabad – Baroda Highway, 5 persons viz. Kandhal Jadeja (named in the FIR), Karan Jadeja, Umedpuri @ Bhayo Nathupuri Goswami, Jayesh (said to be the driver of the vehicle used in the crime) and Raja (the other unknown person mentioned in the FIR). 4. Later the Investigating Officer on 03.03.2005 took into custody from the Ahmedabad – Baroda Highway, 5 persons viz. Kandhal Jadeja (named in the FIR), Karan Jadeja, Umedpuri @ Bhayo Nathupuri Goswami, Jayesh (said to be the driver of the vehicle used in the crime) and Raja (the other unknown person mentioned in the FIR). From the possession of Kandhal Jadeja one 9 mm pistol along with 14 cartridges were recovered, which were exhibited as material Exh.U. Similarly, from Karan Jadeja another 9 mm pistol along with 9 cartridges were recovered, which were exhibited as material Exh.A. From Umedpuri Goswami, 10 cartridges of 0.38 bore were recovered. A separate FIR against Karan Jadeja and Umedpuri Goswami was registered under the provisions of the Arms Act, 1959 in Ahmedabad District. According to the learned counsels appearing for the parties, the said trial is still pending. Out of the 5 persons taken into custody on 03.03.2005 Kandhal Jadeja, Jayesh and Raja referred to in the FIR were challaned under the said FIR and sent to judicial custody. Later on, on 07.03.2005, Rekhaben, wife of Kandhal Jadeja was also arrested from Porbandar in the same FIR of Porbandar for being part of the criminal conspiracy resulting into the commission of offence. On 10.03.2005, Karan Jadeja and Ummed Goswami apart from their arrest under the Arms Act at Ahmedabad, were also arrested and challaned under the Porbandar FIR for the alleged criminal conspiracy. The Investigating Officer completed the investigation. The complete transaction which emerged after the investigation is stated in para 2 of the judgment of the Trial Court, which is reproduced below: "(2) The brief fact of the prosecution case is such that, the accused nos. 1,4,7,8 and absconding accused namely Kana Sarman Jadeja and the deceased Rekha wife of Kandhal Sarman Jadeja, all together in furtherance of common intention to commit an offence and in collusion with each-other have hatched a criminal conspiracy at a particular time and place before 10:15 hours on 01-03-2005 for Keshu Nebha Odedara - a resident of Porbandar and abetted one another to execute the conspiracy. The accused Raja @ Gado Jakhra Bhutiya and later on the accused Jayesh @ Jayu Deva Danti Gadhvi joined the said conspiracy. As a part of the conspiracy hatched by all the accused persons, the murder of Keshu Nebha Odedara was committed at Porbandar on 01-03-2005. The accused Raja @ Gado Jakhra Bhutiya and later on the accused Jayesh @ Jayu Deva Danti Gadhvi joined the said conspiracy. As a part of the conspiracy hatched by all the accused persons, the murder of Keshu Nebha Odedara was committed at Porbandar on 01-03-2005. Thus, they have committed punishable offence u/s. 302 of I.P.C. read with sections 120(B), 109. In order to execute this pre-planned conspiracy, the accused nos. 1,2,3 and the absconding accused Kana Sarman Jadeja, came in a Motor Car and spoke abusive words to Keshu Nebha Odedara in public on the Main Road, at Kadiya Plot, Porbandar and gave criminal threat to Keshu Nebha Odedara to kill him. The accused no. 1 and the absconding accused Kana Sarman Jadeja, were equipped with fire arms with them and fired at Keshu Nebha Odedara and have caused fatal injuries to Keshu Nebha Odedara. Despite having knowledge that he would die in the ordinary course of nature due to these fatal injuries, they did so, and due to which Keshu Nebha died due to the injuries caused by the accused persons. By committing this murder, the accused persons have committed the offence u/s. 504, 506(2), 302 of Indian Penal Code read with sections 34 and 120(B). Also at the aforementioned place and time, the accused persons, the absconding accused Kana Sarman Jadeja and the deceased Rekhaben wife of Kandhal Sarman Jadeja have committed the offence in collusion with each other to fulfill the common criminal intention and as a part of conspiracy abetting one another, the accused no. 1 and Kana Sarman Jadeja, with an intention to kill Rama Kara Odedara, had started firing with the pistol, due to which he sustained fatal injuries and despite knowing that there is the possibility that he might die due to these fatal injuries, they have tried to commit his murder. The accused nos. 2 & 3 have held Rama Kara Odedara and beaten him with kicks and fist blows and have injured him. Thus they have committed punishable offence u/s. 307, 323 of Indian Penal Code read with section 34. The accused no. 1 has committed the punishable offence u/s. 25(1) (A). The accused nos. 2 & 3 have held Rama Kara Odedara and beaten him with kicks and fist blows and have injured him. Thus they have committed punishable offence u/s. 307, 323 of Indian Penal Code read with section 34. The accused no. 1 has committed the punishable offence u/s. 25(1) (A). 25(1)(BA) of Arms Act, 1959 at the aforementioned place and time by possessing the illegal fire arms - a Pistol with cartridges in public with a criminal intention, and fired at Keshu Nebha Odedara, and thus committed his murder with the Pistol which was possessed by him. Also, though the Notification of the District Magistrate regarding Prohibition to keep arms was in force during the aforementioned time and date, the accused no. 1 has violated the Notification of Prohibition to keep arms on possessing the illegal fire arms and hence have committed the punishable offence u/s. 135(1) of Bombay Police Act 1951. The accused Kana Sarman Jadeja and the deceased Rekha, wife of Kandhal Sarman Jadeja in collusion with each other, to fulfill the common criminal intention. have exchanged the registration number of the Motor Car which was used in the murder of Keshu Nebha Odedara, and the accused no. - 4 has tried to dispose off the Pistol used in the offence, accused no. 5 has tried to dispose the live cartridges used in the Pistol and in this way, they tried to destroy the evidence and have committed the punishable offence u/s 201 of Indian Penal Code read with Sections 34 and u/s. 120(B). The accused nos. 5 and 6 and the accused nos 1,2,3,4,7,8 and the absconding accused Kana Sarman Jadeja and the deceased Rekha, wife of Kandhal Sarman Jadeja have murdered Keshu Nebha Odedara as a part of preplanned conspiracy and despite knowing that they are indulged in the criminal act punishable for capital punishment or life imprisonment they have abetted one another to hide at different places to escape from the arrest. Thus, they have committed the punishable offence u/s. 212 of Indian Penal Code read with Section 34 or 114. All the aforementioned accused persons have committed the above said offences, and as the complainant of this case has filed the complaint against all the accused persons, the police have carried out the investigation of the offence. As sufficient evidences were available against the accused persons at the end of the investigation. All the aforementioned accused persons have committed the above said offences, and as the complainant of this case has filed the complaint against all the accused persons, the police have carried out the investigation of the offence. As sufficient evidences were available against the accused persons at the end of the investigation. the Charge Sheet has been filed in this Court against the accused persons." 5. The charge-sheet was submitted on 20.05.2005. As part of the conspiracy, three other persons were also charge-sheeted viz. Santokben, Bhoja and Ranjit. It would be relevant to mention here that initially when the charge sheet was submitted on 20.05.2005, four accused viz. Kana Jadeja, Santokben Jadeja, Bhoja and Ranjit were absconding. Later on, a supplementary charge sheet was submitted on 26.10.2005 against the co-accused Bhoja and Santokben and another supplementary charge sheet was submitted on 03.03.2006 against the co-accused Ranjit. Kana Jadeja was still absconding. 6. The Magistrate committed the case to trial before the Sessions Court where it was registered as Sessions Case Nos.37, 38 and 39 of 2006. The Trial Judge framed charges on 24.01.2007. On 05.02.2007 soon after the charges had been framed, Kandhal Jadeja escaped from police custody and Raja, co-accused also absconded. In the meantime, trial commenced. On 01.03.2007, an application was moved by the Public Prosecutor to lead the evidence in the trial even in the absence of Kandhal Jadeja and Raja (marked as Exh.70). The Trial Court allowed the said application on 01.06.2007. Further the Public Prosecutor moved an application Exh.105 on 11.10.2007 for separation of trial. The Trial Judge allowed the said application on the same day and directed to proceed with the trial against all the accused, except the four absconding accused. 7. The prosecution led 23 witnesses between the period from 02.06.2008 to 18.07.2009. In the meantime, on 26.07.2009 Kandhal Jadeja and Raja were arrested. On 30.07.2009 Public Prosecutor moved another application Exh.255 praying for joining the two arrested accused in the continuing trial. The Trial Judge allowed the said application. However, an endorsement was made and also incorporated in the order that the two accused now sought to be joined in the trial would have their right to crossexamine the witnesses, who had already been examined. Thereafter, the Public Prosecutor moved another application on 01.11.2010 Exh.536 under Section 311 of the Code of Criminal Procedure, 1973 to recall the eye witness PW-6. Thereafter, the Public Prosecutor moved another application on 01.11.2010 Exh.536 under Section 311 of the Code of Criminal Procedure, 1973 to recall the eye witness PW-6. The Trial Court vide order of the same date i.e. 01.011.2010 allowed the application, however, limited the fresh testimony of PW-6 only to the extent of identification of two accused. After all the witnesses were examined (total 59), the prosecution closed its evidence on 16.11.2010. On 29.11.2010 the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The Trial Court after hearing the counsels for the parties vide judgment and order dated 11.02.2011 did not find sufficient material so as to record finding of conviction against the accused and accordingly acquitted all the accused extending the benefit of doubt to them. 8. The Trial Court recorded acquittal based upon the consideration of the record and proceeding on the following premises: [i] The first informant who was accompanying the deceased and was present at the place of occurrence and is also said to have been thrashed by the accused, died before the trial could commence. [ii] The prosecution has produced five witnesses of fact i.e. of scene of occurrence, they are PW-4 Hirendra Joshi (Kalu Brahmin), PW-6 Ramabhai Nebhabhai Odedara, PW-7 Madhubhai (owner of Kanhaiya Pan Shop), PW-8 Anil Jethva (tailor at the shop in the vicinity) and PW-29 Bhagwanji Jinabhai (owner of Adhyashakti Pan Shop). Out of these five eye witnesses, who deposed before the Trial Court, it is only PW-6 Ramabhai Nebhabhai Odedara, who has fully supported the prosecution story. Whereas, the other four witnesses have although supported the occurrence at the given time, place and date, but have clearly stated that they did not identify the assailants. So their testimonies are relevant to the limited extent of the incident having taken place at the designated time and place. Thus, the testimony of PW-6 Ramabhai Odedara attaches utmost importance to it. 9. The testimony of PW-6 Ramabhai Odedara being that of an interested witness as he was own brother of the deceased, was to be very carefully scrutinized. So their testimonies are relevant to the limited extent of the incident having taken place at the designated time and place. Thus, the testimony of PW-6 Ramabhai Odedara attaches utmost importance to it. 9. The testimony of PW-6 Ramabhai Odedara being that of an interested witness as he was own brother of the deceased, was to be very carefully scrutinized. The Trial Court after considering the examination-in-chief and crossexamination of PW-6 when compared with the testimonies of the other eye witnesses as also medical evidence and the recovery, held it to be unreliable for the following reasons: [a] The presence of PW-6 at Mahalaxmi Pan Shop which according to the Surveyor is at a distance of 100 meters from the Kanhaiya Pan Shop and he could not have seen the occurrence or could have identified the assailants from such a distance. [b] The statement of PW-6 of throwing empty soda glass bottles at the assailants while they were trying to escape has also been found to be not supported as the glass pieces collected by the Investigating Officer were not from the close vicinity of the place where the deceased was lying, but from a distance of more than 70 feet from there. [c] At the time of identification parade, PW-6 did not participate therein and it was only the first informant (who is said to have identified) had participated in the identification parade. [d] PW-6 is said to have carried his brother in his arms to the rickshaw, in which he was taken to the hospital accompanied by PW-6. PW-6 although stated that his clothes and hands were smeared with blood, but he neither informed the Investigating Officer of the said fact nor handed over his clothes with blood stains to the Investigating Officer. [e] PW-6 stated that he made a phone call to his near relative from the rickshaw while on way to hospital, but he did not name the assailants or the accused persons who had committed the crime. [f] Even at the hospital, PW-6 did not disclose the names of the assailants to the doctor while providing details of the injured. [g] When compared with the testimony of other eye witnesses, the testimony of PW-6 becomes further doubtful, untrustworthy and totally unbelievable. 10. The Trial Court also recorded finding that the prosecution had utterly failed to produce authentic and cogent evidence to prove the conspiracy. 11. [g] When compared with the testimony of other eye witnesses, the testimony of PW-6 becomes further doubtful, untrustworthy and totally unbelievable. 10. The Trial Court also recorded finding that the prosecution had utterly failed to produce authentic and cogent evidence to prove the conspiracy. 11. It is also the finding of the Trial Court that even the forensic / evidence of the ballistics also could not be relied upon even though one of the weapons / fire arms recovered from Kandhal Jadeja and Karan Jadeja had matched with the bullets recovered from the body of the deceased as also the empty shells from the spot for the following reasons: [i] It was after 1 year and 8 months that the recovered weapon and bullets were sent to forensic. [ii] The report on which reliance has been placed by the prosecution, is the second report. [iii] The first report had found that there was no match, but on some technical reasons the recovered items were sent again to the lab. [iv] The manner in which recovery has been effected was also not proper and legal. 12. The above judgment of the Trial Court is under challenge in the present two appeals. We have heard Shri Mitesh Amin, learned Public Prosecutor in the State appeal being Criminal Appeal No.762 of 2011, Mr. Virat Popat, learned counsel appearing for the appellant of the Criminal Appeal No.456 of 2011 and Shri Nirupam Nanavaty, learned Senior Advocate assisted by Mr. Nirad Buch and Mr. Jayvik Bhatt, learned counsels appearing for the respondents. 13. At the outset, we may refer to the settled principles on the scope of hearing appeal against the judgment and order of acquittal. 14. Pertaining to the question of an appeal against acquittal and the scope of power of appellate court in an appeal against acquittal, it is appropriate to refer Padam Singh v. State of U.P., (2000) 1 SCC 621 , in which while explaining the duty of the appellate court, the Supreme Court has expressed thus: “It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.” 15. In K. Gopal Reddy v. State of Andhra Pradesh, (1979) 2 SCR 363 : (1979) 1 SCC 355 : AIR 1979 SC 387 , the Supreme Court was considering the power of the High Court against an order of acquittal under Section 378 of the Criminal Procedure Code, 1973. Chinnappa Reddy, J. after considering the relevant decisions on the point stated: "The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and Courts used to launch on a search to discover those 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh & Ors. v. State of Rajasthan (1961) 3 SCR 120 . In Sanwat Singh's case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swamp v. Emperor (1934) 61 IA 398 and re-affirmed those principles. After Sanwat Singh v. State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup's case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion. In some cases (Ramabhupala Reddy & Ors. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion. In some cases (Ramabhupala Reddy & Ors. v. State of A.P. AIR 1971 SC 460 , Bhim Singh Rup Singh v. State of Maharashtra, AIR 1974 SC 286 ), it has been said that to the principles laid down in Sanwat Singh's case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court". This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable". (emphasis supplied) In Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 , this Court said; "While setting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only reappraise the evidence to arrive at its own conclusions". In Alarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC 57 , referring to earlier decisions, the Court stated; "The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re- appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding".” 16. Therefore, taking into consideration the above decisions, it can be concluded that the power of the appellate Court in an appeal against acquittal is the same as that of an appeal against conviction. But, in an appeal against acquittal, the Court has to bear in mind that the presumption of innocence is in favour of the accused and it is strengthened by the order of acquittal. At the same time, appellate Court will not interfere with the order of acquittal mainly because two views are possible, but only when the High Court feels that the appreciation of evidence is based on erroneous considerations and when there is manifest illegality in the conclusion arrived at by the trial Court. 17. In Chandrappa Vs. At the same time, appellate Court will not interfere with the order of acquittal mainly because two views are possible, but only when the High Court feels that the appreciation of evidence is based on erroneous considerations and when there is manifest illegality in the conclusion arrived at by the trial Court. 17. In Chandrappa Vs. State of Karnataka ( 2007 (4) SCC 415 ), the court stated certain general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal: (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 18. Mr. Amin has broadly made submissions to the effect that the Trial Court committed grave illegality in disbelieving the testimony of PW-6, who was a wholly reliable witness having seen the occurrence with his own eyes, his presence would not be doubted. 19. Mr. 18. Mr. Amin has broadly made submissions to the effect that the Trial Court committed grave illegality in disbelieving the testimony of PW-6, who was a wholly reliable witness having seen the occurrence with his own eyes, his presence would not be doubted. 19. Mr. Amin further submitted that conviction can be based on single testimony of an eye witness, however, the same has to be totally reliable and must inspire confidence. He further submitted that the Trial Judge committed grave illegality in misreading the report of the FSL. He also submitted that recovery of fire arms made from the accused was valid recovery and from the forensic report, the use of one of the weapons having been proved and matched with the bullets and the empty shells recovered from the place of occurrence, there was no, rather little scope for acquittal and it is a fit case for conviction of accused. However, so far as conspiracy theory set out by the prosecution is concerned, Mr. Amin could not make any submissions. He thus prayed that the appeal be allowed and the judgment of the Trial Court be set aside and the accused respondents Kandhal Jadeja, Jayesh and Raja be convicted. 20. Mr. Virat Popat, learned counsel for the complainant – appellant in addition to the submissions advanced by Mr. Mitesh Amin, vehemently submitted that apart from misreading of the FSL report and the evidence of PW-6, the evidence of PW-4 fully supports and corroborates the evidence of PW-6, and therefore, discarding the evidence of PW-6 by the Trial Court is not proper and justified. In effect, the submission is that discarding the evidence of PW- 6 is unsustainable. According to Mr. Popat, the ocular testimony of PW-6 duly corroborated by PW-4 and the FSL report was sufficient to record conviction. 21. On the other hand, Mr. N.D.Nanavaty, learned Senior Advocate appearing for the respondents supported the judgment of the Trial Judge. He submitted that both the appeals being completely devoid of merits deserve to be dismissed. The Trial Court has considered each and every aspect of the matter, the legal and factual submissions have been discussed threadbare, as such there is little scope in these appeals against the acquittal for interference with the judgment of the Trial Judge. 22. According to Mr. The Trial Court has considered each and every aspect of the matter, the legal and factual submissions have been discussed threadbare, as such there is little scope in these appeals against the acquittal for interference with the judgment of the Trial Judge. 22. According to Mr. Nanavaty, the evidence of PW-6 has rightly been disbelieved and discarded by the Trial Judge for the reasons already recorded therein. He has further sought to submit that the Investigating Officer very fairly stated that it was not possible to see from Mahalaxmi Pan Shop (where PW-6 was sitting) to Kanhaiya Pan Shop (where the incident took place). The clothes of PW-6 did not contain any blood stains. The statement of PW-4 is also said to be an eye witness, in fact, dislodges the statement of PW-6. The other eye witnesses having not been declared hostile by State / Public Prosecutor, they have rightly not been relied upon for the fact that the crime was committed by the accused. The testimony of eye witnesses other than PW-6 does not corroborate the testimony of PW-6 with regard to the manner in which the transaction is said to have taken place. According to Mr. Nanavaty PW-6 not a natural witness rather his presence was not natural. He was not present at the place of occurrence. He has been introduced subsequently. He was a planted witness. 23. It is also submitted by Mr. Nanavaty that the respondents have been falsely implicated on account of political rivalry. Mr. Nanavaty, learned Senior Advocate, also submitted that merely because the Trial Judge made a wrong statement about the FSL report, would not materially affect or influence the final outcome as in the absence of any corroborative evidence no conviction can be recorded on the strength of FSL report having been misread by the Trial Court. He also submitted that the recording of conviction on the basis of sole testimony of a related/interested witness would be hazardous and not in consonance with the settled principles of criminal law. For all the submissions advanced above, Mr. Nanavaty, learned Senior Advocate submitted that both the appeals deserve dismissal. 24. He also submitted that the recording of conviction on the basis of sole testimony of a related/interested witness would be hazardous and not in consonance with the settled principles of criminal law. For all the submissions advanced above, Mr. Nanavaty, learned Senior Advocate submitted that both the appeals deserve dismissal. 24. The evidence adduced by the prosecution, the lodging of a prompt FIR, identification of the body, the postmortem report, the oral evidence produced and the evidence collected by the Investigating Officer adduced during the trial clearly prove that Keshu Nebha Odedara, the deceased suffered bullet injuries at the time, date and place as per the prosecution story, as a result of which, he subsequently died. The question is as to who committed the crime, whether the persons named in the First Information Report were the assailants or some unknown persons had committed the crime and for which the accused had been named falsely. 25. Before we delve into the merits of the matter, there is yet another issue which could have been addressed by the defence (the respondent in the present case) regarding procedural illegalities but only if the prosecution by the evidence on record had established beyond reasonable doubt that it was the respondents who had committed the crime. The procedural flaw is to the effect that two of the accused were subsequently introduced into an ongoing trial, namely, Kandhal Jadeja and Raja. At the time they were included into the trial, 23 witnesses had already been examined by the prosecution, out of these 23, four eye witnesses had been examined, namely, PW 4, PW 6, PW 7 and PW 8. These included the star witness of the prosecution, namely PW 6. The trial court did not recall these witnesses to offer an opportunity to the two newly introduced accused in the trial to afford them opportunity to cross-examine. Shri Virat Popat, learned counsel for the appellant in one of the appeals has submitted that the right to cross-examine by these newly introduced two accused was statutory right and they having not asserted it, there would be no procedural illegality or irregularity. He has submitted that the trial court did not commit any error. Shri Popat has also placed reliance upon five judgments on the above point which we have discussed later in point of time. He has submitted that the trial court did not commit any error. Shri Popat has also placed reliance upon five judgments on the above point which we have discussed later in point of time. We may, however, only comment that this aspect has not been gone into by us for the simple reason that we are not convinced that the prosecution had led sufficient evidence to prove the charges beyond reasonable doubt. 26. This is also a case of falsus uno falsus omnibus. The prosecution had introduced too many accused and had also set up conspiracy theory by charging three of the accused of only of conspiracy but completely failed to lead any cogent and reliable evidence to that effect. Even in the appeal, the charges of conspiracy have not been sought to be argued apparently for the reason that there was no evidence to that charge. The above gives clear indication of the prosecution story being not true and natural account of the incident but it was clear case of false implication of some of the accused. 27. We have already referred to the legal submissions with regard to scope in an appeal against the acquittal. Both the learned counsels for the appellants have not been able to point out any perversity or material illegality in the judgment of the Trial Court which may compel us to record a finding contrary to the findings recorded by the Trial Court. 28. We have also scrutinized the evidence and we are convinced that the findings recorded by the Trial Judge are just, proper and fair and in consonance with settled propositions of law. 29. We are conscious of the fact that in dealing with the criminal appeal, whether it is against conviction or against acquittal, the appeal court is required to examine the evidence and scrutinise it in order to record its own findings and conclusions. We have already referred to the law on the point with regard to the scope of the appeal court and the procedure to be adopted by the appeal court. We may only record here that against the judgment of conviction, burden is much more on the appeal court to examine and scrutinise the evidence. Whereas against the judgment of acquittal, the evidence still needs to be examined and scrutinised but not with the same strength. We may only record here that against the judgment of conviction, burden is much more on the appeal court to examine and scrutinise the evidence. Whereas against the judgment of acquittal, the evidence still needs to be examined and scrutinised but not with the same strength. In the present case, what we found from the arguments advanced and from the material evidence on record that referring to the scrutiny of individual witnesses would only be waste of time as we do not find any perversity in the scrutiny of evidence by the trial Judge and upon comparing it with the evidence duly scrutinised by us and as such, we are not repeating the same. 30. Mr. Virat Popat, learned counsel appearing for the complainant has relied upon the following judgments in support of his submissions, which we have discussed and find them to be of no help to the appellants: 30.1 In Atma Ram and Ors. Vs. State of Rajasthan ( AIR 2019 SC 1961 ), even though it is established that it is within the power of the High Court of ordering a complete re-trial, the court in the same judgment also reiterates that the observations made in Pandit Ukha Kolhe v. State of Maharashtra (1964) 1 SCR 926 that an order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. In the instant case there is no evidence of the trial being vitiated by any serious illegalities or irregularities to demand the necessity of a retrial. 30.2 Even though in Jayendra Vishnu Thakur Vs. In the instant case there is no evidence of the trial being vitiated by any serious illegalities or irregularities to demand the necessity of a retrial. 30.2 Even though in Jayendra Vishnu Thakur Vs. State of Maharashtra ( 2009 (7) SCC 104 ) the power of the Court under Section 299 of the Code to record witnesses is emphasized if it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court also emphasizes on the right of the accused to demand a fair trial. The right to cross-examine a witness, apart from being a natural right is a statutory right as given in Section 33 of the Evidence Act. The Court must ensure that before the application of Section 299 that both proof of jurisdictional fact in respect of absconding of an accused person and that there was no immediate prospect of arresting him are satisfied. Moreover, the importance of the right to cross examine for the accused cannot be understated. In the present matter, prosecution witness Nos.1 to 23 have been recorded in the absence of both the accused. 30.3 In the case of Nirmal Singh Vs. State of Haryana [ (2000)4 SCC 41 ], the court on a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, concluded that the pre- conditions in both the Sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 Cr.P.C. before the arrest of the accused can be utilized in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299(1) of the Code of Criminal Procedure is established. In the present case, as both the accused have not demanded their right to recall the witnesses for cross examination, they can be used against them. 30.4 In the case of Khurshid Ahmed vs. State of Jammu and Kashmir ( 2018 (7) SCC 429 ) it has been established that If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. 30.4 In the case of Khurshid Ahmed vs. State of Jammu and Kashmir ( 2018 (7) SCC 429 ) it has been established that If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. However, the court also asserts that Courts must be cautious while considering the evidence of interested witnesses. In the instant case, the primary witness Rama Nebha, being the brother of the deceased, is an “interested witness” and moreover, because his evidence is contradictory to other witnesses and is not corroborated by the forensic reports or the fact that his position during the incident was 100 meters apart from place of incident, it can be concluded that the said judgment would be of no help to hold the testimony of Rama Nebha to be reliable. 30.5 In the case of Vijay Mohan Singh Vs. State of Karnataka reported in (2019)5 SCC 436 , the findings recorded by the learned trial court while acquitting the accused were perverse and the approach of the trial court was patently erroneous and the conclusions arrived at by it were wholly untenable, the court reversed the order of acquittal by trial court as the High Court is entitled to re-appreciate the entire evidence independently and come to its own conclusion. However, the court also states that the High Court would not be justified in interfering with order of acquittal solely on ground on re-appreciation of evidence that two view are possible. In the instant case, there are no grounds for reversing the decision of the Trial Court as there are no infirmities in the findings of the Trial court that would lead to a miscarriage of justice. Even perusal and scrutiny of the evidence does not at all inspire confidence to record a conviction. 30.6 In the case of Padam Singh Versus State of Uttar Pradesh ( 2000 (1) SCC 621 ), it was stated that it is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts. It must be remembered that the appellate Court like the trial Court has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubts as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction recorded by the Trial Court. However, the case in Padam Singh was a matter of an appeal against conviction and the court in that case also stated that the judicial approach in dealing with the case where an accused is charged of murder under Section 302 has to be cautious, circumspect and careful and the High Court, therefore, has to consider the matter carefully and examine all relevant and material circumstances, before upholding conviction. In the present matter, it being an appeal against acquittal, the court has to find evidence beyond reasonable doubt and unless it can find such evidence, the accused is innocent. Moreover, there stands no reason to question the findings of the trial court to reverse its decision. 30.7 In Chandrappa Vs. State of Karnataka ( 2007 (4) SCC 415 ), an order of acquittal in an alleged offence of murder was restored by the Supreme Court, the Supreme Court stated certain general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal. In this case, the court gave the benefit of doubt to the accused as the possibility of two views cannot be ruled out. If two views are possible on the basis of evidence on record, and the one favorable to accused has been taken by the trial court, it ought not to be disturbed by the appellate court. Applying the same principle in the instant case, the order of acquittal by the trial court ought not be disturbed. 30.8 Even though in Chandrappa Vs. State of Karnataka ( 2008 (11) SCC 328 ), the evidence of the sister of accused was held reliable despite discrepancies in her evidence, it does not apply to the fact of the present case. 30.8 Even though in Chandrappa Vs. State of Karnataka ( 2008 (11) SCC 328 ), the evidence of the sister of accused was held reliable despite discrepancies in her evidence, it does not apply to the fact of the present case. In the instant case however, the testimony of Rama Nebha cannot be held reliable as it was not mere discrepancies but it was an impossibility for him to be able to see the accused while being one hundred meters apart from the location of the incident. Moreover, the testimony of Rama Nebha was also not corroborated by any other evidence to prove that the accused had actually committed the murder. 30.9 In the case of Gagan Thakur vs State of Jharkhand (2004 CriLJ 1910) the question before the court was “Whether the case of an absconding accused can be committed under Section 209, Cr PC along with the accused who have already appeared before the committing Court.” The court held that once the case has been committed, the absconding accused have to appear or brought before the sessions Court and the Sessions Judge is competent to remand him. This case is also of no help in the facts of the case in hand. 30.10 In the case of M.S. Kochar Vs. State and Ors. (ILR 1986 Delhi 142) the Court while interpreting Section 299 of the Code stated that it is manifest that the object of the provision contained therein is to ensure that important evidence is not lost by the time an absconding accused is arrested. It aims at preserving the evidence against the absconding accused so that even if the witness whose evidence has been so recorded is not available on account of death or otherwise as stated in the Section itself the same can be pressed into service against the said accused if and when he is brought to trial. This Section can be resorted to only when it is proved that the accused person has absconded and there is no immediate prospect of his arrest. In the present case, as both the accused have not demanded their right to recall the witnesses for cross examination, prosecution witness Nos.1 to 23 can be used against them, despite having been recorded in the absence of both the accused. 31. In the present case, as both the accused have not demanded their right to recall the witnesses for cross examination, prosecution witness Nos.1 to 23 can be used against them, despite having been recorded in the absence of both the accused. 31. None of the above judgments would extend any benefit to the appellant - complainant on the facts which are very clearly distinguishable as observed above. 32. For all the reasons recorded above, both the appeals fail and are hereby dismissed.