JUDGMENT : A.Y. Kogje, J. 1. The present appeal under Section 378 of the Code of Criminal Procedure is preferred by the State against the judgment and order dated 17.10.1997 passed by the Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.127 of 1993, recording the acquittal of the respondent of the charge of Section 302 of the Indian Penal Code. 2. It is a case where the respondent who was working as a Police Constable and the deceased-Mahendrasinh were good friends and on 16.12.1992 at 4:00 p.m. while Mahendrasinh was at his work, the respondent came there and using the service gun fired upon the deceased, thereby killing him. 3. Learned Additional Public Prosecutor has taken this Court through the charge and thereafter, the evidence of the eyewitnesses as also the evidence of the panch witnesses and the medical evidence as well as the evidence of the police officers including the investigating officer to submit that the Sessions Court has committed an error in acquitting the respondent. 4. Learned Additional Public Prosecutor submitted that the prosecution had relied upon the evidence of the eyewitnesses which included the informant, Jayantikumar Bharatbhai Patel, in whose shop the deceased was working and the shop being the place of occurrence. It is submitted that though this witness has been declared hostile, from the cross examination by the prosecution the contents of the FIR and witness has been contradicted for the same. 4.1. Similarly, learned Additional Public Prosecutor has also drawn attention of this Court to the other independent witness, Ratibhai Patel, who is an independent shop owner near the place of incident and has confirmed the presence of the respondent in police uniform carrying the service rifle with him. It is submitted that though this witness has not supported the case of the prosecution in entirety, yet his version with regard to the presence of the respondent at the place of offence get established. 4.2. Thereafter. It is submitted that though this witness has not supported the case of the prosecution in entirety, yet his version with regard to the presence of the respondent at the place of offence get established. 4.2. Thereafter. Learned Additional Public Prosecutor has heavily relied upon the evidence of witness valambhai Rupabhai, who was at relevant time working as Head Constable in the headquarter to submit that the accused was allotted rifle and 20 cartridges, whereas after the offence only 19 cartridges were received from the accused and therefore the Session Court ought to have concluded that the missing cartridge was of the bullet which was fired upon the deceased and as the firing has taken place from the service rifle issued to the respondent, the prosecution has established the use of the firearm issued to the petitioner and firing from which has resulted in the death of the deceased. 4.3. The Ld APP relied Upon the evidence of witness-Ishwarsinh Jagatsinh, who was the co-employee of the respondent and was performing duty alongwith the respondent in patrolling. This witness deposed that in the afternoon the respondent had gone on duty and has thereafter never resumed his duty after the break and therefore his conduct after the incident ought to have been considered by the Sessions Court for the role of the respondent in the offence. 4.4. Learned Additional Public Prosecutor submitted that the discovery panchnama of the weapon used in the offence is attributed to the respondent and that the service rifle from which the firing took place was found from the hotel belonging to the brother of the respondent. It is submitted that though the Panch witnesses have turned hostile, yet the discovery panchnama ought to have been treated as admissible evidence as the panchnama was exhibited through the Investigating Officer. 4.5. Learned Additional Public Prosecutor has relied upon the evidence of Mulsinh Dabhi, who is the father of the deceased to establish motive to the respondent accused. It is submitted that this witness has deposed that previously the decased and the respondent were close friends and as the respondent was behaving irresponsibly and this witness has advised his son not to keep close friendship with the respondent and as the deceased follow the instruction of his father in rage the incident has taken place. 4.6. It is submitted that this witness has deposed that previously the decased and the respondent were close friends and as the respondent was behaving irresponsibly and this witness has advised his son not to keep close friendship with the respondent and as the deceased follow the instruction of his father in rage the incident has taken place. 4.6. Learned Additional Public Prosecutor submitted that from the evidence of the Medical Officer, the prosecution has been able to establish the cause of death attributed to the firearm injury caused on the vital part of the body of the deceased. It is therefore submitted that the prosecution has been able to establish the evidence on record and without considering the same erroneously, the Sessions Court has proceeded to record the acquittal. Learned Additional Public Prosecutor has lastly relied upon the ballistic report at Exh. 67 to submit that the prosecution has established that the cartridge which was sent for examination has been fired from the rifle which was issued to the the respondent. 5. The Court has heard learned Additional Public Prosecutor, none present for the respondent, the informant and perused the record and proceedings as well as the impugned judgment and order. 5.1. From the impugned judgment and order, it is evident that insofar as the procedural formalities regarding completion of Section 207 of the CRPC, the same has been followed. Therefore, there is no need for closer examination of the procedural aspect of conducting of the trial. The same is also not an issue raised by the appellant state. 6. Vide Exh.5, charge is framed against the respondent, indicating that the respondent who was working in the police establishment as a constable on 16.12.1992 at 4:00 p.m. arrived at the scene of offence near the District Panchayat office with the service rifle and with an intention to cause death, fired upon Mahendrasinh Mulsinh causing him an injury and resulting in his death. The charge was therefore framed for offense under Section 302 of IPC. 7. The charge was therefore framed for offense under Section 302 of IPC. 7. While considering the appeal of the State against the acquittal recorded would refer to the decision of the Apex Court in State of Rajasthan v/s. Sohanlal and others, reported in 2004 (5) SCC 573 , where in the Apex Court has laid down that even while dealing with an appeal against the acquittal, the High Court is obliged to scan through and if need be appreciate the entire evidence. The Apex Court in the very judgment has also observed that while interfering with the impugned judgment, the Court should find an absolute assurance of guilt on the basis of the evidence on record and not to interfere merely because a different view is possible to be taken by the High Court. Keeping the aforesaid principal in mind the Court would now proceed to take into consideration the evidence on record. 8. PW-1-Jayanthikumar Bharatbhai Patel is the informant and also the employer of the deceased. His evidence was recorded by Exh.8. This witness was declared hostile. However, the evidence of this witness reveals a very relevant aspect. In his deposition, the witness has deposed that on 16.12.1992, at approximately 4:30 p.m. he was at his shop where deceased Mahendrasingh was also present and was sitting on the stool just outside the shop, while the witness was sitting inside the shop. At this time, a person dressed in police uniform came with his rifle and Mahendrasinh took the rifle from the police man and was fiddling with the rifle at that time he heard a loud sound and saw Mahindrsinh was lying down. He further deposed that that on account of firing Mahendrasinh was injured on his head for which he had given the complaint. This witness however had refused to identify the respondent as the policeman who he had seen coming with the gun, he depose that after the incident that policeman left with the gun. This witness has not even identified the gun. The witness was declared hostile. In the cross examination by the Public Prosecutor, the contents of the complaint given by him was put to him, but this witness has denied to have recorded the version in the complaint. Even upon being declared hostile, the prosecution is unable to bring anything in its support. The witness was declared hostile. In the cross examination by the Public Prosecutor, the contents of the complaint given by him was put to him, but this witness has denied to have recorded the version in the complaint. Even upon being declared hostile, the prosecution is unable to bring anything in its support. However, this witnesses certainly given a theory to the case of the prosecution that the firing of the weapon took place when the deceased himself had taken the gun from the policeman and was fiddling with the gun, when the firing sound was heard. This witness is an informant and has established his presence naturally at the place and scene of offence. The place being his own shop where the deceased was working as an employee. Therefore, from the evidence of this witness, no role is coming out of the respondent insofar as the incident of firing and injury is concerned. 9. The prosecution has also examined PW-8 Virambhai Rambhai Patel vide Exh.17. This witness has a shop near the scene of offense and was present naturally at the scene of offence. Though prosecution has examined this witness as an eyewitness, he does not attribute any role to the respondent, but has deposed that on the day of incident, he saw deceased near the staircase of the shop with an head injury. This witness does indicate in his deposition that Jayantibhai informed him that Shailedrasinh Ranjitsinh Shaktavat( Respondent herein) had fired upon his friend, however when Jayantibhai by himself not having supported the version of the prosecution, the evidence of this witness is also rendered in consequential. 10. Yet another eyewitness examined by prosecution is PW-9 Rameshbhai Amballa Patel vide Exh.18. He is also a partner in the shop where the deceased was working. This witness has deposed that while he was at the shop and was writing down accounts, at that time, heard a loud noise and when he came out he saw Mahendrabhai lying down with injury. He also deposed that before the incident he was inside the shop. This witness also is declared hostile. 11. The prosecution has examined an independent eyewitness, who is the shop owner of nearby shop where the deceased was working. He is examined as PW 10-Ratilal Bababhai Patel at Exh.19. This witness has not supported the case of the prosecution from the beginning. This witness also is declared hostile. 11. The prosecution has examined an independent eyewitness, who is the shop owner of nearby shop where the deceased was working. He is examined as PW 10-Ratilal Bababhai Patel at Exh.19. This witness has not supported the case of the prosecution from the beginning. He has deposed that he neither knows the deceased but had only seen a dead body lying with an injury and public running hear and there and shops being closed down. 12. The analysis of all the evidences of the eye witnesses does not attribute any role to the respondent and therefore the prosecution appears to have failed to establish the case against the respondent on the basis of the ocular evidence of any eyewitness. 13. The Other set of evidence are the evidences in the form of the medical evidence, the panchnamas drawn and the formal police witnesses. PW 14 is Dr. Hansaben Manishankar, who was examined vide Exh. 25 is the medical officer, who performed the postmortem. In her evidence, she has referred to the nature of injury sustained and described the same in column 17 as a gun shot on the left side of the forehead with an entry wound and an exit wound which is from the right temporo-parieto-occipital Region. This would indicate the path of injury by a gunshot from lower to higher side of the skull. The firing has therefore taken from a height below the place where the deceased was sitting on a stool. This does not support the theory of the prosecution of someone having fired parallellely from a short distance, but would rather support the theory which is coming out on record by the evidence of the eyewitness and informant PW-1-Jayantibhai was deposed that the firing sound was heard while the deceased was fidgeting with the rifle. However, the prosecution has from the evidence of the medical officer established the homicidal death of the deceased. 14. Further, lot of emphasis was made on the discovery panchnama for discovery of the weapon from which the firing took place. Exhibit 34 is the discovery Punchnama. This Panchnama was drawn in the presence of panch Kalusinh Babasinh and Rakeshkumar Shankarlal. These witnesses have been examined as PW-3 and PW-4 respectively. 14. Further, lot of emphasis was made on the discovery panchnama for discovery of the weapon from which the firing took place. Exhibit 34 is the discovery Punchnama. This Panchnama was drawn in the presence of panch Kalusinh Babasinh and Rakeshkumar Shankarlal. These witnesses have been examined as PW-3 and PW-4 respectively. Kalusinh at Exh.10 however refers to the panchnama as if the panchnama drawn in his presence for that of the scene of offence vide exhibit 34 as the panchnama of discovery of the rifle. The prosecution has therefore committed a gross error in examining PW-3, who is a panch of Exh.34, but has given the deposition as if he is a panch of the scene of offence. With regard to the panchnama of discovery, this witness has not given any details. Similarly PW-4 has not referred to any content of Exh.34 and therefore both these witnesses were declared hostile. The discovery panchnama being an important document was sought to be exhibited by the investigating officer, who was examined as PW-19 at Exh.33. The perusal of the evidence of this witness does not refer to the contents of discovery, but this witnesses also deposed with regard to his signature and Exh.34 is given only for the signature even as per the deposition of the investigating officer. 15. At this stage, it would be appropriate to refer to the decision of the Apex Court in case of Ramanand alias Nandlal Bharati vs/. State of Uttar Pradesh, reported in, AIR 2022 SC 5273 , where the Apex Court has in great detail explained the manner and method by which the panchnama is required to be proved as an admissible evidence. “56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.” 16. In the opinion of the Court, the prosecution has completely failed to established the discovery Punchnama as an admissible piece of evidence. The investigating officer not having deposed to the extent of contents of the panchnama. In this regard, it will also be relevant to refer to the deposition of PW 5-Narendrasinh Ranjitsinh Shaktava at Exh.12. This witness was examined as it is the case of the prosecution that the service rifle was discovered from his hotel. This witness has also been declared hostile and therefore not only the discovery panchnama is not proved by the prosecution, even the witness in this regard has not supported the case of prosecution. 17. The evidence at Exh.67 is the ballistic report of the FSL. The perusal of this report would indicate that exhibit C1 is 0.303 rifle bearing number 11c 5998, and C2 being a cartridge having identification mark. The only fact ruled by this document is the cartridges C2 is fired from exhibit C1 rifle. 18. 17. The evidence at Exh.67 is the ballistic report of the FSL. The perusal of this report would indicate that exhibit C1 is 0.303 rifle bearing number 11c 5998, and C2 being a cartridge having identification mark. The only fact ruled by this document is the cartridges C2 is fired from exhibit C1 rifle. 18. In this connection, it would be appropriate to refer to the evidence of PW-13 at Exh.23, Valambhai Rupabhai, who is an employee of the police department and has deposed that the respondent was issued 20 cartridges and after the incident out of 20 cartridges 19 cartridges were received Back. It is pertinent to observe that this witness has deposed that 19 cartridges were received back from a constable Keshavbhai and not from the respondent. The prosecution has not examined said constable Keshavbhai nor is there anything on record as to how 19 cartridges produced by said Keshavbhai can be co-related to the 20 cartridges issued by the department to the respondent. This being an important link which the prosecution has failed to establish beyond reasonable doubt and therefore cannot believe theory of the prosecution that only on account of receiving 19 cartridges out of the 20 cartridges issued to the respondent, one cartridge was the very cartridge which was fired upon the deceased. 19. This very witness in the cross-examination has answered in affirmative when the questions were put with regard to the possible utilization of the ammunition and the possibility of loss of a cartridge during the course of duty. The Sessions court has specifically referred to this condition considering the prevailing situation during the period when the incident took place as it referred to the prevailing tensed situation and curfew being imposed on account of large scale law and order situation persuant to the State wide rioting. In this situation the prosecution was obliged to produce on record which would directly connect the cartridge of the fire with the rifle. It is pertinent to observe that during the investigation, the prosecution has failed to place on record any document to indicate recovery of the fired bullet which actually caused the injury on the deceased. 20. Moreover, the evidence refers to the recovery of the fire weapon and in the very weapon the cartridge was found inside the rifle. It is pertinent to observe that during the investigation, the prosecution has failed to place on record any document to indicate recovery of the fired bullet which actually caused the injury on the deceased. 20. Moreover, the evidence refers to the recovery of the fire weapon and in the very weapon the cartridge was found inside the rifle. In the opinion of the Court, in this fact situation, the prosecution has failed to establish the connectivity between the bullet which caused injury and the service rifle issue to the respondent. 21. The Court has taken into consideration the impugned judgment and order. The Court finds that Sessions Court has signed sufficient and cogent reason in not accepting the case of prosecution due to lack of any ocular evidence or any circumstantial evidence to corroborate the case against respondent. 22. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471 , wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa &Ors. vs. State of Karnataka reported in (2007) 4 SCC 415 , the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court. 23. In the result, the appeal fails and is dismissed. The judgment and order dated 17.10.1997 passed by the Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.127 of 1993 stands confirmed stands confirmed. 23. In the result, the appeal fails and is dismissed. The judgment and order dated 17.10.1997 passed by the Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.127 of 1993 stands confirmed stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.