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2023 DIGILAW 268 (GUJ)

State Of Gujarat v. Harijan Devsi Nathu

2023-02-08

HEMANT M.PRACHCHHAK, VIPUL M.PANCHOLI

body2023
JUDGMENT : Hemant M. Prachchhak, J. 1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 25.09.1998 passed by the learned Additional Session Judge, Jamnagar in Sessions Case No.144 of 1995, whereby the accused – respondents herein came to be acquitted from the charge of the offences punishable under Sections 302, 307, 147, 148, 149 etc the Indian Penal Code (for short “the IPC”) and under Section 135 of Bombay Police Act, the appellant – State of Gujarat has preferred present criminal appeal u/s 378 of the Code of Criminal Procedure, 1973 (for short “the Code”). 2. Briefly stated, the complainant – Kanjibhai Devabhai Sadiya registered complaint with City “B” Division Police Station, Jamnagar on 03.09.1995 being C.R.No.I-28/1995 inter-alia stating that on 02.09.1995 the complainant went to his field at about 2.30 p.m. and one Devshi Nathu had tied bullocks near the field of the complainant and since the complainant stated not to tie the bullocks near his filed, thereupon, the accused stated that do whatever he can do. On 03.05.1995 at about 6.00 p.m., the accused persons came to the house of the complainant and used filthy language and the quarrel took place between them. It is alleged that during this fight, accused gave knife and stick blow to the complainant and the complainant, his father and one Pujabhai sustained serious injuries injuries. 3. Pursuant to the FIR lodged by the complainant, investigating agency recorded statements of the prosecution witnesses, drawn panchanama and collected relevant expert evidence for the purpose of proving the offence. After having found sufficient material against the respondents herein and for the aforesaid offence, charge-sheet came to be filed in the Court of learned JMFC, Jam Jodhpur. Since the case was exclusively triable by Sessions Court, learned JMFC, Jam Jodhpur 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 Exhibit 3 on 16.05.1995 against the accused including the respondents herein for the aforesaid offence. The accused pleaded not guilty and claimed to be tried. 5. 4. Upon committal of the case to the Sessions Court learned Sessions Judge framed charge at Exhibit 3 on 16.05.1995 against the accused including the respondents herein for the aforesaid offence. The accused pleaded not guilty and claimed to be tried. 5. In order to bring home charge, the prosecution has examined 14 prosecution witnesses and also produced documentary evidence before the learned trial Court, which is as under :- Oral evidence: Sr.No Name of witnesses Exhibit 1 Doctor H. G. Shah 15 2 Kanji Deva 20 3 Deva Mepa 22 4 Haja Amara 23 5 Deva Bhima 24 6 Amara Rana 36 7 Bhikha Vora 38 8 Devji Mulaji 39 9 Mohan Tapur Lathiya 40 10 Sahdevsinh Prabhatsinh 43 11 S. L. Pandya 48 12 Doctor H. M. Mangal 51 13 B. T. Zala 54 14 Dharmendrasinh Anopsinh Jadeja 58 Documentary Evidence: Sr.No Documents Exhibit 1 Injury certificate of Deva Bhima 16 2 Injury certificate of Kana Deva 17 3 Treatment papers of Ghela Chana 18 4 M.L.C. of Puja Deva 19 5 Complaint 21 6 Inquest panchnama 25 7 Death certificate 26 8 Arrest panchnama 27 9 Yadi wrote to the Community Health Centre 28 10 Yadi for collecting blood sample of Ghela 29 11 Details for sending muddamal to the FSL 30 12 Authority certificate 31 13 Letter of FSL 32 14 Letter of FSL 33 15 Analysis report of FSL 34 16 Serological report 35 17 Seizure panchnama of muddamal 36 18 Yadi for making map of the scene of offence 41 19 Map of the scene of offence 42 20 Yadi wrote for hospital head constable 44 21 Copy of MLC register 45 22 Yadi wrote lodged complaint 46 23 Letter for performing postmortem of the dead body 52 24 Postmortem note 53 25 Copy of station diary 55 26 Panchnama of weapons produced by accused 56 57 6. Before we hear the appeal, it is observed that original accused No.2 – Harijan Chana Nathu, respondent No.2 herein was expired on 05.03.2009 and, therefore, the appeal qua respondent No.2 stands abated. 7. On conclusion of evidence on the part of the prosecution, the trial Court recorded further statements of respondents as provided under Section 313 of the Code, wherein, the respondents herein denied their involvement in the offence and stated that false case has been filed against them. 7. On conclusion of evidence on the part of the prosecution, the trial Court recorded further statements of respondents as provided under Section 313 of the Code, wherein, the respondents herein denied their involvement in the offence and stated that false case has been filed against them. After hearing both the sides and after appreciating evidence adduced by the prosecution, the learned Additional Judge acquitted the respondents herein from the charge of offence under Sections 302, 307, 147, 148, 149 etc the IPC and under Section 135 of Bombay Police Act. 8. We have heard Mr.Chintan Dave, learned Additional Public Prosecutor for the appellant – State of Gujarat, Mr.Pratik Barot, learned advocate for respondents No.1, 4 and 5 and Ms.S. P. Joshi, learned advocate for respondent no.3 and minutely examined the oral as well as documentary evidence adduced before the learned Trial Court discussed at great length in the impugned judgment itself. 9. Mr.Dave, learned Additional Public Prosecutor for the appellant – State of Gujarat has submitted that the Trial Court has committed an error by not believing the case of the prosecution. He has submitted that the Trial Court has discarded the evidence of the eye witnesses namely P.W.2 – Kanji Deva at Exhibit 20 and P.W.5 Deva Bhima at Exhibit 24, which fact is supported by the independent witness likewise doctor and the serological report. It is submitted by learned Additional Public Prosecutor that the Trial Court has committed an error by disbelieving the case of the prosecution and the evidence of the witnesses and the documentary evidence. According to Mr.Dave, learned Additional Public Prosecutor, Trial Court has committed an error in acquitting the accused for the charges levelled against them. He has submitted that the impugned judgment and order of acquittal be quashed and set aside and the findings recorded by the Trial Court be reversed. Learned Additional Public Prosecutor has argued that though the accused have committed an offence beyond reasonable doubt, the Trial Court has not considered such fact while passing the impugned judgment and order of acquittal. It is submitted by the learned Additional Public Prosecutor that though the motive was proved, the Trial Court has not considered the case of quarrel and manifestly committed an error while appreciating the ocular evidence of the eye witnesses i.e. Kanji Deva, Deva Bhima and Deva Mepa in the facts of the case. It is submitted by the learned Additional Public Prosecutor that though the motive was proved, the Trial Court has not considered the case of quarrel and manifestly committed an error while appreciating the ocular evidence of the eye witnesses i.e. Kanji Deva, Deva Bhima and Deva Mepa in the facts of the case. He has submitted that the Trial Court has committed an error by not properly appreciating the ocular evidence of the witnesses who have fully corroborated and supported the case of the prosecution. He has submitted that the Trial Court has committed serious error while appreciating the evidence of medical officer Doctor H. M. Mangal at Exhibit 51, who performed the postmortem of Pujabhai wherein it is clearly stated that the cause of death is due to serious factual injury and as per the opinion of the doctor, it is sufficient in ordinary nature to cause the death of the deceased and, therefore, the impugned judgment and order of acquittal be quashed and set aside and the respondents be convicted for the alleged offence. He has urged to allow the appeal and quash and set aside the impugned judgment and order of acquittal passed by the Trial Court. 10. Per contra, Mr.Barot, learned advocate for respondents No.1, 4 and 5 has supported the impugned judgment and order and has submitted that the trial Court has not committed any error of law and fact in acquitting the accused from the charges levelled against them. He has submitted that the ingredients of the offence alleged against the accused are not proved beyond reasonable doubt and, therefore, the Trial Court has rightly acquitted the accused as the complainant has failed to prove the charge levelled against the accused. He has also submitted that there is no iota of evidence to connect the accused with the alleged crime. He has prayed to confirm the impugned judgment and dismiss the present appeal. Mr.Barot, learned advocate has submitted the written submissions on behalf of the respondents. 10.1 Mr.Barot, learned advocate has relied upon the following decisions:- (1) Lakshmi Sing Vs. State of Bihar reported in AIR 1976 SC 2263 ; (2) Dinesh Vs. State of Haryana reported in (2015) 17 SCC 804; (3) Sanjay Khanderao Wadane Vs. State of Maharashtra reported in 2017 (0) AIJEL-SC 60585; (4) Kumar Vs. 10.1 Mr.Barot, learned advocate has relied upon the following decisions:- (1) Lakshmi Sing Vs. State of Bihar reported in AIR 1976 SC 2263 ; (2) Dinesh Vs. State of Haryana reported in (2015) 17 SCC 804; (3) Sanjay Khanderao Wadane Vs. State of Maharashtra reported in 2017 (0) AIJEL-SC 60585; (4) Kumar Vs. State represented by Inspector of Police reported in (2018) 7 SCC 536 ; (5) Arvind Kumar @ Nemichand Vs. State of Rajasthan reported in 2021 AIJEL-SC 68029; 11. Ms.Joshi, learned counsel for respondent No.3 has supported the arguments made by Mr.Barot, learned counsel. She has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order of acquittal be confirmed. 12. In the case of Dinesh (Supra), the Hon’ble Supreme Court has held and observed in paragraph No.16 as under:- “16……...The prosecution cases appears to be highly exaggerated and embellished. If the prosecution has tried to implicate three persons - the father and the two sons, while only one or two of them might have assaulted the injured Santra Devi and positive role is assigned to the three accused persons which is not corroborated by medical evidence, the Court is left guessing about the exact number of assailants and the manner in which they may have assaulted the injured. The present one is the case where a little grain has been mixed up with so much of chaff that it is almost not possible to separate the grain. Though a Court of facts is obliged to make an effort at finding out the truth by separating it from the falsehood, but, on finding it not possible to do so, it is not permissible for the Court to spin out altogether a new case, different from the one alleged by the prosecution, and to convict the accused.” 13. In the case of Kumar (Supra), the Hon’ble Supreme Court has held and observed in paragraphs No.24 and 27 as under:- “24. On the point of suppression of genesis of the crime, PW-20 (head constable) categorically states that he was present before the Ambulance had reached the place. Even though he was extensively cross-examined, he has not budged from his position that there was no recording of any statement before the Ambulance recorded. On the contrary PW-2 categorically remarks that a statement was recorded by PW-20 before the ambulance arrived. Even though he was extensively cross-examined, he has not budged from his position that there was no recording of any statement before the Ambulance recorded. On the contrary PW-2 categorically remarks that a statement was recorded by PW-20 before the ambulance arrived. Although the High Court has discredited the evidence of PW-2 as the part which provides the aforesaid details was on recalling after few days, therefore, in light of possibility of being won over, the credibility of the statement made by PW-2 needs to be viewed with this background fact. However, we fail to understand internal logic of such assumption, when the prosecution has not declared the witness as hostile and more so, when his narrative is corroborated by other witnesses. Therefore, PW-2 s evidence needs to be taken into fold. 27. Another point put forth by the learned counsel on behalf of the accused appellant is that the prosecution has not explained the injuries suffered by the accused and hence prosecution case should not be believed. At the outset, it would be relevant to note the settled principles of law on this aspect. Generally failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true [See : Mohar Rai and Bharath Rai v. The State of Bihar, 1968 CriLJ 1479].” 14. In the case of Arvind Kumar @ Nemichand (Supra), the Hon’ble Supreme Court has held and observed in paragraphs No.47, 48, 49, 55, 56 and 57 as under:- “47. In Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 , this Court considered the effect of suppression of injuries suffered by the accused. Accordingly, it was held that if the injuries on the accused are substantial and to the knowledge of prosecution, a failure to conduct the investigation while denying the same would be fatal especially when a doctor who examined the deceased and the injured accused deposes otherwise. Paragraph 12 of the aforesaid judgement, states thus: “12. Accordingly, it was held that if the injuries on the accused are substantial and to the knowledge of prosecution, a failure to conduct the investigation while denying the same would be fatal especially when a doctor who examined the deceased and the injured accused deposes otherwise. Paragraph 12 of the aforesaid judgement, states thus: “12. …It seems to us that in a murder case, the nonexplanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: “(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [ (1975) 2 SCC 7 ] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [ (1975) 2 SCC 7 ] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises. Falsus in Uno- Falsus in Omnibus 48. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country. The principle governing sifting the chaff from the grain has to be applied. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of discrepancy in a given case. When the discrepancies are very material shaking the very credibility of the witness leading to a conclusion in the mind of the court that it is neither possible to separate it nor to rely upon, it is for the said court to either accept or reject. 49. The said principle of law has been dealt with by this court in Anand Ramachandra Chougule v. Sidarai Laxman Chougala, (2019) 8 SCC 50 , which states thus: “9. We have considered the respective submissions and perused the materials on record. The relationship between parties and the existence of a land dispute regarding which a civil suit was also pending are undisputed facts. The fact that a verbal duel followed by scuffle took place between the parties culminating in injuries is a concurrent finding of fact by two courts. We have considered the respective submissions and perused the materials on record. The relationship between parties and the existence of a land dispute regarding which a civil suit was also pending are undisputed facts. The fact that a verbal duel followed by scuffle took place between the parties culminating in injuries is a concurrent finding of fact by two courts. The fact that the accused also lodged an FIR with regard to the same occurrence stands established by the evidence of PWs 19 and 22, the investigating officers, who have admitted that the respondent-accused had also lodged BRPS Cr. No. 79/02 — marked Ext. D-10, which was not investigated by them. Similarly, PW 11, the police constable, deposed that two of the accused were admitted in the District Hospital, Belgaum and that he was posted on watch duty. The occurrence is of 7-6-2002 and respondent-Accused 1 and 2 were discharged on 11-6-2002. Their injury report has not been brought on record by the prosecution and no explanation has been furnished in that regard. 10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt. 11. The fact that a defence may not have been taken by an accused under Section 313 CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427] , this Court observed : (SCC pp. 433-34, para 28) “28. In [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427] , this Court observed : (SCC pp. 433-34, para 28) “28. … When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.” 12. The fact that an FIR was lodged by the accused with regard to the same occurrence, the failure of the police to explain why it was not investigated, coupled with the admitted fact that the accused were also admitted in the hospital for treatment with regard to injuries sustained in the same occurrence, but the injury report was not brought on record and suppressed by the prosecution, creates sufficient doubts which the prosecution has been unable to answer. 13. We find it difficult to concur with the submission on behalf of the appellants that the failure of the prosecution to investigate the FIR lodged by the accused with regard to the same occurrence or to place their injury reports on record was merely a defective investigation. We are of the considered opinion that the failure of the prosecution to act fairly and place all relevant materials with regard to the occurrence before the court enabling it to take just and fair decision has caused serious prejudice to them. A fair criminal trial encompasses a fair investigation at the pretrial stage, a fair trial where the prosecution does not conceal anything from the court and discharges its obligations in accordance with law impartially to facilitate a just and proper decision by the court in the larger interest of justice concluding with a fairness in sentencing also.” 55. The reasoning adopted by the Court for the accused persons acquitted will have to be applied to the case of the others as well in view of the aforesaid view expressed by us already, as we find that the suppression made would be sufficient to disbelieve the case of the prosecution. The reasoning adopted by the Court for the accused persons acquitted will have to be applied to the case of the others as well in view of the aforesaid view expressed by us already, as we find that the suppression made would be sufficient to disbelieve the case of the prosecution. There is no adequate material for the Court to come to a different conclusion with respect to the offence committed or for that matter, a case of exceeding the private defence. The accused persons have taken the plea of private defence as well as a bare denial. Once the Court has come to a conclusion that the other accused persons who have been acquitted would not have been present, the concept of private defence assumes more significance. The High Court itself has come to a conclusion, and so also the trial court on the second occasion, that it is a case of over implication. We do not find any error in the views expressed by the Court on that count. 56. The evidence adduced on behalf of the prosecution, particularly, the eyewitnesses do not inspire confidence. While there is a clear denial of them having attacked the injured accused persons, a mere statement that they carried logs would not be sufficient to reject the plea of private defence especially in the light of the injuries suffered. The witnesses speak of multiple injuries suffered by the deceased and the other injured witnesses. The view that the evidence of an injured witness has to be placed at a higher pedestal may not apply to a case of private defence with the accused also injured. The doctor’s evidence does not support the specific overt act. Witnesses speak of knife, farsi and spears being used at random. The overt act attributed to the convicted accused using weapons such as farsi do not correspond to the injuries. The injuries are primarily lacerated in nature. This discussion we make in addition to our primary conclusion we arrived at already. Suffice it to note that the genesis and origin of the occurrence and the manner in which it took place are certainly suppressed. When the plea of private defence is taken, the quality of material evidence will have to be a bit higher than that of the one required in a normal circumstance. Suffice it to note that the genesis and origin of the occurrence and the manner in which it took place are certainly suppressed. When the plea of private defence is taken, the quality of material evidence will have to be a bit higher than that of the one required in a normal circumstance. We are concerned with the role of the prosecution in proving the case beyond reasonable doubt. Unfortunately, two lives have been lost. However, mere suspicion on a moral ground can never be the basis for a conviction. We can only lament that the situation has been brought forth by the unwarranted approach of the prosecution. Incidentally, we approve the views of the High Court on the acquittals rendered. 57. We may note that the prosecution witnesses though residing at different places, stated to have gathered at the place of occurrence in large number. Admittedly, the occurrence also happened during the night-time and there is no evidence to show existence of sufficient light. 15. We have appreciated the oral as well as documentary evidence and we have also considered the written submission of the respondents placed on record before us. After perusal of the evidence and in detailed examination, we find that the Trial Court has rightly appreciated the evidence led by the prosecution and even the prosecution has failed to explain the injury caused to respondent No.5 during the quarrel which is serious in nature thereby the prosecution has suppressed the genesis of occurrence / incident. There is serious infirmity in the ocular version of so-called eye witnesses i.e. P.W.2 and P.W.5 viz-a-viz the medical evidence and the FSL report. 16. It is required to be noted here that the Trial Court has, while appreciating the evidence, rightly recorded that there is exaggeration and omission on the part of the relevant witnesses who have tried to involve all the accused in such a serious offence of homicidal death of the deceased. It also appears that the prosecution has not examined important and material witnesses with a view to suppress the genesis of the incident. It also appears that the prosecution has not examined important and material witnesses with a view to suppress the genesis of the incident. Further, the witnesses have stated before the Court below that the deceased has received many injuries but while performing the postmortem, the concerned doctor found only one stab injury which is on the back side of the deceased and there is no other injury found on the body of the deceased which is contrary to the ocular version of the witnesses i.e. P.W.2 and P.W.5. It also appears that the Trial Court, while considering the panchnama of the scene of offence, has rightly appreciated the fact that the blood mark started from the scene of offence upto the house of accused No.5 and no blood stain found from the house of accused No.5 as stated by the witnesses meaning thereby that they are aggressor to the incident and from the house of accused No.5, they dragged accused No.5 to the place of occurrence. In view of such major discrepancy in the evidence of eye witnesses, the Trial Court after appreciating evidence found it appropriate to extend benefit of doubt to the respondents. On our reassessment and re-appreciation of entire evidence, we do not find that there is any infirmity or irregularity in the findings of fact recorded by the learned trial judge. Under the circumstances, the learned trial Judge has rightly acquitted the respondents for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal. 17. 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. 18. (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. 18. 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." 19. 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. 20. 20. For the foregoing reasons, we do not deem it safe to place reliance on the testimony of P.W.2 – Kanji Deva and P.W.5 Deva Bhima. In any case, we are satisfied that there is a reasonable doubt about these two apprehension of danger to the body continues. When the apprehension of danger has ceased and yet a person continues his attack, he exceeds the right of private defence. 21. It is well settled by catena of decisions that the an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is 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. 22. Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 23. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 23. It is worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 . The relevant paragraph of the decision of the Hon’ble Supreme Court in the case of Chandrappa (supra) reads as under:- “The following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate 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.” 24. 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.” 24. 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 372 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal. 25. In view of the above and for the reasons stated above, present appeal fails and same deserves to be dismissed and is accordingly dismissed. The impugned judgment and order of acquittal dated 25.09.1998 passed by the learned Additional Judge, Jamnagar in Sessions Case No.144 of 1995 is hereby confirmed. Bail bonds shall stands cancelled. Record and proceedings be transmitted back to the concerned Court forthwith.