JUDGMENT : SANDEEP N. BHATT, J. 1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 07.11.1998 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case No.152 of 1996 for the offences under Sections 148 & 149 read with Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act, the applicant – State of Gujarat has preferred this appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 (“the Code” for short) inter alia challenging the judgment and order of acquittal in favour of the respondents accused. 2. The case of the prosecution is as under : 2.1 On 23.06.1996 at about 2:00 a.m., one Atul Nathwani, who happened to be the friend of Mahesh – deceased, has come to the house of the complainant and told that, someone has given knife blow to Mahesh and he was lying on the road near Musafarkhana in bleeding condition. Therefore, the complainant – Sureshkumar Durlabhji Ghutla, one Manoj and his father immediately rushed there and taken the deceased to the hospital in rickshaw, where the Doctor has declared him – Mahesh dead. Thereafter, the complainant lodged the complaint with regard to the incident before the Junagadh City Police Station, which was registered for the offences under Sections 147, 148, 149 and 114 read with Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. 3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondents accused, charge-sheet came to be filed in the Court of learned Chief Judicial Magistrate, Junagadh. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court, learned Sessions Judge framed charge at Exh.1 against the respondents accused for the aforesaid offence. The respondents accused pleaded not guilty and claimed to be tried 5. In order to bring home charge, the prosecution has examined 23 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 5 of the impugned judgment and order. 6. The respondents accused pleaded not guilty and claimed to be tried 5. In order to bring home charge, the prosecution has examined 23 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 5 of the impugned judgment and order. 6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondents accused of the offences, for which they were tried, as the prosecution failed to prove the case beyond reasonable doubt. 7. We have heard learned APP Ms. Chetna Shah appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing. 8.1 Now, before starting appreciation of evidence, it is relevant to note that accused No.1 – Hira @ Hirko Amrabhai has expired on 23.04.2004 during the pendency of the present criminal appeal as per communication received from the Sessions Court, Junagadh dated 29.03.2022. Hence, the present criminal appeal stands abated qua respondent No.1 (original accused No.1) - Hira @ Hirko Amrabhai. Therefore, we are discussing the evidence qua respondent Nos.2 to 4 – the original accused Nos.3 to 5 in the present appeal. 8.2 The charge is framed by the Additional Sessions Judge, Junagadh at Exh.2 against the accused Nos.3 to 5 at Exh.2 about causing the death of Mahesh Durlabhji Soni, with common intention and by creating illegal assembly and thereby committed an offence punishable under Sections 148 and 149 read with Section 302 of the Indian Penal Code, 1860 as well as Section 135 of the Bombay Police Act. 8.3 In the context of the charge, if we peruse the evidence of the prosecution witnesses, from entire evidence, the role for causing the injuries to the deceased – Mahesh Soni, is attributed to the accused No.1 viz., Hira @ Hirko Amrabhai, who has died during the pendency of the present appeal. 8.3 In the context of the charge, if we peruse the evidence of the prosecution witnesses, from entire evidence, the role for causing the injuries to the deceased – Mahesh Soni, is attributed to the accused No.1 viz., Hira @ Hirko Amrabhai, who has died during the pendency of the present appeal. 8.4 Some allegations are found against accused No.2 from the deposition of investigating officer – Devayatbhai, who was examined at Exh.44, where he has deposed that respondent No.2 – Virji Mulji Solanki was arrested on 23.06.1996, therefore, he has given application to add Sections 147, 148, 149 and 114 of the Indian Penal Code, 1860 in the said offence. Further, he has deposed that respondent No.3 – Premji Gova Parmar has produced knife during the discovery Panchnama in the presence of Panchas. Further, he has deposed in his examination-inchief that respondent No.4 - Pravin Jiva Rathod has produced the weapon in the presence of Panchas and thereafter, he has not disclosed anything further against any of the accused except this version in his examination-inchief. If we consider the deposition of pancha witness – Suresh Gaurishankar Pathak, who is examined at Exh.28, he turned hostile and he has not supported the version which is given by the police officer about the discovery and recovery from the respondent Nos.2 to 4. If we consider the version of the another pancha witness - Shakeel Mohammad Qureshi at Exh.26, he has also not supported the Panchnama and he turned hostile. Therefore, neither recovery nor discovery is proved by leading cogent and convincing evidence. 8.4 Further, if we consider the deposition of the complainant himself – Sureshbhai Durlabhji, who is examined at Exh.12, he has only identified accused No.1 - Hira @ Hirko Amrabhai. Further, he has neither disclosed any name of any accused in his deposition nor attributed any role to such accused other than accused No.1 - Hira @ Hirko Amrabhai. Further, the prosecution has examined other witnesses - Dr. Jayantilal Chhaganbhai at Exh.13, who has supported the injuries but nothing is found from his deposition, which could connect the involvement of other accused - respondent Nos.2 to 4 in the commission of offence in question. If we also consider the deposition of another witness – Noor Ahmad at Exh.18, he has also not disclosed anything against respondent Nos.2 to 4. If we also consider the deposition of another witness – Noor Ahmad at Exh.18, he has also not disclosed anything against respondent Nos.2 to 4. Further, another witness – Kishan Laxman, who is examined at Exh.19, has also not disclosed anything against respondent Nos.2 to 4. Further, another witness – Mahendra Chalumal, who is examined at Exh.20, has also not disclosed anything about the role of respondent Nos.2 to 4. The prosecution has also examined one Bhikabhai Viralbhai Rawal at Exh.21, who has deposed that respondent No.1 - Hira @ Hirko Amrabhai has demanded sword from him, but in his oral evidence, he denied that he has given such statement before the police but in any case, he has also not deposed anything about the involvement of respondent No.2 to 4 in the crime in question. The prosecution has also examined another witness – Mohammad Husain Ibrahim at Exh.22, who has also not supported the version of the prosecution about the role of respondent Nos.2 to 4. The prosecution has also examined another witness – Durlabhji Kanji at Exh.23, who has also not supported the prosecution about the involvement of respondent Nos.2 to 4 in the crime in any manner. The prosecution has examined another witness – Iqbal Asham Qureshi at Exh.24, who has deposed that he was left from the scene of offence and there were about four to five persons, but he doesn’t know that who are those four to five persons. Therefore, he has also not supported the case of prosecution and pleaded for respondent Nos.2 to 4. Further, the prosecution has examined various witnesses i.e. witness - Dilawar Habib Makrani at Exh.32, witness – Ejaz Mohammad Seikh at Exh.33, witness – Ali Mohammad Habib Makrani at Exh.34, witness – Hasam Musa at Exh.35, witness – Sanjay Kumar Sanchaniya at Exh.36, witness – Iqbal Hussain Quadri at Exh.37, witness – Mahemood Ghachi at Exh.38 etc., none of them has supported the version that the respondent Nos.2 to 4 were involved in the crime in question. 8.5 Therefore, merely the Investigating Officer has given evidence, which about - process of investigation, which is not supported and corroborated by any of the witnesses, the trial Court has also given convincing findings in para 11 of the judgment about the role of respondents No.2 to 4 in the crime in question and how the prosecution has failed to prove the involvement of the respondent Nos.2 to 4 in the crime in question. 8.6 On re-appreciation of the entire evidence as discussed above, we found that there is no iota of evidence available against respondent Nos.2 to 4 and therefore, the respondent Nos.2 to 4 are required to be acquitted from the charges levelled against them under Section 302 read with Sections 148, 149 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act. Accordingly, the trial Court has not committed any error in acquitting the accused persons as the prosecution has failed to prove by producing cogent and convincing evidence and by proving its case beyond reasonable doubt. Therefore, we find that there is no perversity or infirmity in the reasons recorded by the trial Court. 8.7 Under the circumstances, the learned trial Court has rightly acquitted the respondents for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the trial Judge leading to the acquittal. 9. In view of above and on our own analysis and reappreciation of the evidence, we do not find any infirmity or compelling reasons to interfere with the order of acquittal recorded by the trial Court. 10. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable (Ramesh Babulal Doshi V. State of Gujarat - (1996) 9 SCC 225 ). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 11. In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 11. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280 , Supreme Court has held as under: “The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal." 12. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 13. 13. In the very recent judgment reported in 2021 (15) SCALE 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the Hon’ble Apex Court has observed the scope of section 378 of the Code in Para : 20 to 22 as under :- “20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal. 21. Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity. 22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity. 22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.” 14. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal. 15. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is accordingly dismissed.