ORDER : A.Y. KOGJE, J. 1. Present Appeal is preferred by the original complainant under Section-372 of the Code of Criminal Procedure, 1973, against the acquittal recorded by the judgment and order dated 19-01-2023 passed by Sessions Judge, Modasa, Arvalli, in Sessions Case No.3 of 2020. By the aforesaid judgment and order, the respondent Nos.1 and 2 (original accused) have been acquitted for the offences under Section-302 and 114 of the Indian Penal Code. 2. The complaint came to be registered by the appellant, when the uncle and aunt of the appellant on 08-10-2019 saw the dead body of the deceased-Bipin (brother of the complainant) in hanging position on the door of the old house of the complainant. Upon immediate inquiry, younger brother; Vipul informed the complainant that the deceased-Bipin and Vipul on 07-10-2019 were at another Village-Andhariya for celebrating ‘Navratri’ festival and about 3.30 am, the deceased-Bipin had returned back to their Village-Padra, while Vipul continued to stay at Village-Andhariya. However, at around 4.00 am, allegedly Vipul received mobile phone call from the accused no.1 informing Vipul that Bipin had come to the house of the accused no.1 to meet his niece and his mobile is found here, so Vipul and Bipin should come and collect the mobile. 3. On account of the aforesaid on the basis of suspicion that on account of relationship between Bipin and niece of the accused no.1, the offence was committed for which F.I.R. came to be registered as C.R. No.I-83 of 2019 with with Bhiloda Police Station against three accused persons. 4. It appears that the charge was framed vide Exh-5 against three accused persons of whom, accused No.3; Martaji Ditaji Bodar had expired and therefore, the trial qua him had abated, whereas by the impugned judgment and order, two respondents-accused were acquitted on account of lack of evidence to establish the charge. 5. The main contention of learned advocate for the appellant is that an error is committed in acquitting the respondents-accused, despite the deposition of the complainant / appellant; Hiteshbhai Rameshbhai Ninama vide Exh-24, who has deposed about the deceased-Bipin having an affair with the niece of the accused and therefore, the accused had motive to commit the murder. 6. 5. The main contention of learned advocate for the appellant is that an error is committed in acquitting the respondents-accused, despite the deposition of the complainant / appellant; Hiteshbhai Rameshbhai Ninama vide Exh-24, who has deposed about the deceased-Bipin having an affair with the niece of the accused and therefore, the accused had motive to commit the murder. 6. It is submitted that an error is committed in not taking into consideration the evidence of another brother of the deceased and the complainant at Exh-45, who has deposed that at odd hours in the night, the mobile phone call was received by him from the accused no.1 informing him that brother of this witness had come there and his mobile phone is left with the accused. It is further submitted that discovery panchnama exhibited through panch witness vide Exh-43 would indicate that the discovery at the behest of the accused no.1- Thavraji Martaji Bodar lead to discovery of the mobile phone of the deceased and therefore, though the panch was declared hostile, at-least the portion of his evidence, which supported the case of the prosecution, ought to have been considered by the trial Court. 7. Learned Advocate for the appellant has submitted that an error is also committed by the trial Court, when the trial Court did not take into consideration the Call detail record, which corroborated version of witness; Vipul regarding the call having been received by him from accused no.1- Thavraji Martaji Bodar informing him about the mobile phone of the deceased being at his place. 8. Learned Advocate has therefore, submitted that considering the circumstances which includes the motive, evidence to the effect of deceased having gone to the place of accused and the accused informing the witness about this and lastly, found the body of the deceased at his old resident completes chain of events to draw the conclusion that the murder was committed by the respondents-accused. 9. Learned Advocate has placed set of complete Paper-book, which consisted of depositions of 27 witnesses, Postmortem Report, panchnama executed during the investigation, FSL reports and has submitted that the matter be taken up for final hearing. 10.Learned Advocate has submitted that there is defect in the investigation also as though it had come on record that the mobile phone from which witness; Vipul received phone call, was running in the name of third Party; Monikaben. 10.Learned Advocate has submitted that there is defect in the investigation also as though it had come on record that the mobile phone from which witness; Vipul received phone call, was running in the name of third Party; Monikaben. The prosecution has not examined such third Party; Monikaben by recording her statement and citing her as witness. Over and above, the collection of the Call detail record and making it part of the evidence, did not contain certificate under Section-65 of the Indian Evidence Act and therefore, this flow in the investigation has resulted into acquittal. This itself is a good ground for this Court to interfere. 11.Learned Advocate has relied upon the decision of Apex Court in case of Sudha Renukaiah v/s. State of A.P. reported in 2017 (13) SCC 81 and particularly has relied upon Para-23. He has also referred to and relied upon the decision of Apex Court in case of Hari and another v/s. State of Uttar Pradesh reported in 2021 (14) Scale 270 , to support his contention that the evidence of hostile witness cannot be rejected in toto. He has also relied upon the decision of Apex Court in case of Rameshbhai Mohanbhai Koli v/s. State of Gujarat reported in 2011 (11) SCC 111 , to submit that false plea taken by the accused in a case of circumstantial evidence, the case can be treated as an additional link in the chain of circumstances and therefore, when the accused persons in their further statement regarding discovery of phone, has answered in negative, such conduct is required to be held as evidence against the respondents. 12. 12. Having considered the submissions made and the evidence on record, the Court finds that for the incident as narrated in the preceding paras vide Exh-5, the charge was framed, the gist of which is as under: “On 08/10/2019, during around 03-30 to 06-00 hours in the night at Padra village, the deceased Bipin went to the house belonging to you, the accused and on advancing near the ladder, you the accused woke up and keeping suspicion that he had illicit relations with your maternal niece Rinkuben Laljibhai Limbaji Pandor, ran behind the deceased and you, the accused No.(1) Thavraji Martaji Bodar and accused No.(2) Dipendra Thavraji Bodar beat up and strangulated the deceased and you, the accused No.(3) Martaji Ditaji Bodar colluded in this act and both of you the accused No.(1) Thavraji Martaji Bodar and accused No.(2) Dipendra Thavraji Bodar brought the dead body of the deceased Bipin to his old house, in the courtyard of the house belonging to the witness Laljibhai Salubhai Ninama and tied the shirt of the deceased around his neck and hanged him with the stick and strangulated the complainant’s brother Mr.Bipinbhai Rameshbhai Ninama, to death.” 13.PW-1; Hiteshbhai Rameshbhai Ninama vide Exh-24 is the complainant, who in his deposition has deposed to the extent of how he received knowledge about the fact that his brother’s dead body was in hanging position at their old house at Village- Andhariya and the deceased-Bipin had returned home, but around after 3.00 a.m., he left home through backdoor, but did not know as to where his brother had gone and on the very day, in the morning, his dead body in hanging position was found by his uncle and aunt in their old house. This witness has stated that distance between new house and the old house of this family was not much. However, in his cross examination, he has admitted that there was a criminal case filed against him for damaging the house of the accused person and put his lock on the property of the accused person. This witness has stated that distance between new house and the old house of this family was not much. However, in his cross examination, he has admitted that there was a criminal case filed against him for damaging the house of the accused person and put his lock on the property of the accused person. 14.PW-7; Vipulbhai Rameshbhai Ninama vide Exh-45 is brother of the deceased, who has deposed that at around 4.00, he received phone call allegedly from the accused no.1 informing him that his brother – Bipin had come to his house to meet niece of the accused no.1 and mobile phone of Bipin is with this accused and therefore, Bipin and Vipul should come and collect the mobile phone. However, Vipul did not go to collect the mobile phone. 15.Other evidence on record are PW-2; Dharmabhai Navjibhai Ninama vide Exh-27, who is panch of scene of offence, but has not supported the case of the prosecution. PW-3; Kamleshbhai Khimjibhai Bodar vide Exh-32, who is panch witness for recovery of the cloths of the deceased-Bipin. PW-4; Jivrajbhai Adakhaji Ninama vide Exh-33 is panchwitness for recovery of items from the place of offence. PW-5; Manubhai Ranchodbhai Bodat vide Exh-36 is a panch of recovery of cloths of accused, has not supported the case of the prosecution. 16.Reliance is placed upon the evidence of PW-6; Natvarbhai Surjibhai Ninama vide Exh-43, who is a discovery panch of the panchnama, which was drawn for discovery of mobile phone belonging to the deceased-Bipin. The panchnama was exhibited vide Exh-44. 17.Relying upon the evidence of PW-6, it is tried to argue that in his deposition, he has given description of agricultural field, where the incident took place and there in certain portion, grass had fallen flat to argue that this indicated of some scuffle at the place of incident, which is the place belonging to the accused persons. 18.From the overall reading of the evidence of these witnesses, it is a case of circumstantial evidence as there is no eye witness to the offence. the circumstances which are established by the prosecution is relation of the deceased-Bipin with niece of the accused no.1, witness; Vipul received mobile phone call allegedly from the accused no.1 informing that mobile phone of the deceased-Bipin is with the accused no.1 and therefore, Vipul and Bipin should come and collect it. the circumstances which are established by the prosecution is relation of the deceased-Bipin with niece of the accused no.1, witness; Vipul received mobile phone call allegedly from the accused no.1 informing that mobile phone of the deceased-Bipin is with the accused no.1 and therefore, Vipul and Bipin should come and collect it. However, Vipul himself has not gone to collect the mobile phone nor he has informed his brother Bipin to go and collect the mobile phone. The dead body in hanging position found at the door of the old house of the complainant side and the cause of death attributed to asphyxia due to strangulation as mentioned in the Postmortem Report vide Exh-65. 19.The evidence of PW-21; Rinkuben Laljibhai Pandor vide Exh-69 will gain importance as the basic case of the prosecution is affair between the deceased-Bipin and this witness. However, this witness, who is resident of Rajasthan has completely denied of any relationship with the deceased-Bipin. She has denied that she was having any love affair with the deceased-Bipin. Though attempt is made by the appellant side to draw attention of this Court to her statement dated 06-11-2019 recorded by the Police during the course of investigation, accepting about the affair with the deceased-Bipin. However, in the cross examination also by the Public Prosecutor, nothing is coming out in this regard and therefore, according to this Court, the prosecution has failed to establish the motive attributed to the accused persons. 20. In so far as reliance placed upon the decision in case of Hari and another (supra) in support of the argument that the witness, who has turned hostile, their evidence is required to be accepted, if such witness is natural and independent and if found credible. However, case under consideration before the Apex Court was triple murder, wherein the case was based on the evidence of the eye-witness to prove that three persons were tortured and killed by hanging and for the purpose of corroboration, the eye-witness, who turned hostile, the Court had ruled that despite eye-witness being declared hostile, part of the deposition of such witness can be relied upon. 21.In the present case, witness Rinkuben is not a witness to the incident, but was prosecution witness for the purpose of establishing the motive and therefore, when she has not supported the motive, not only in the evidence in chief, but even in the cross examination, there is no indication of existing affair with the deceased-Bipin. In that eventuality, none of the portion of evidence of this witness is supporting the case of the prosecution, which can be relied upon. 22.With regards to the Discovery Panchnama of the mobile phone showed by the accused No.1 from his house during the police investigation, has been produced vide Exhibit No.44 by the Prosecution and even if the fact of the panchnama is believed to be supported by the evidence of the witness No.6 of the Prosecution, no accused can be connected with the offence because no evidence with regard to the owner or occupier of the mobile phone found by the accused No.1 has been produced. The said muddamal of mobile phone has not been shown to any of the witnesses examined by the Prosecution during their depositions. Therefore, from the deposition of any of the witnesses of the Prosecution, it appears that the Prosecution has not brought the facts on record as to who was using the said mobile phone. 23. The Call detail record placed on record would indicate that the mobile phone allegedly belonging to the deceased-Bipin was running in the name of one Monikaben Bodar. None of the witnesses, who are brothers of the deceased-Bipin, have deposed in their deposition about this aspect, whereas this aspect has come on record only upon production of the Call detail record. Therefore, only the Sessions Court has correct in not relying upon the Call detail record. Even if, this evidence is to be believed, still, the only fact that is established, is the information given to Vipul about the location of the mobile phone of the deceased-Bipin. Thereafter, whether the deceased-Bipin has gone actually to the place of the accused persons, where incident took place and from the place of incident, how the act of murder took place and thereafter, the dead body being found in the house of the complainant themselves, are the missing links, which does not complete the chain to establish the circumstances beyond reasonable doubt to convict the accused persons. 24.The scrutiny of Call details record would indicate that Call details produced vide Exhibit 95, as per the representation having been made by the Prosecution, phone call was made from mobile phone number 6355951185 to the sim card phone number 7874307372 at 4 hours 12 minutes and 29 seconds on 09/10/2019 and if it is believed that conversation of 166 seconds has taken place, the fact with respect to sim card of phone number 7874307372 having been issued in the name of Monikaben Bodar comes on record vide Exhibit-95. Therefore, the allegation of the Prosecution that the mobile phone with sim card No.7874307372 belongs to Mr.Vipul, brother of the deceased, is not supported by the call details. There is no representation as to whether any statement of the said Monikaben Bodar was recorded. The said Monikaben Bodar has not been examined by the Prosecution as their witness. Not only that, upon reading call details at Exhibit-95, there appears no signature of the responsible employee / officers producing the call details anywhere therein and no responsible officer / employee of the company issuing the said call details has been examined by the Prosecution as their witness. Not only that, certificate as per Section-65(B) of the Indian Evidence Act has not been produced and therefore also the said call details do not help the case of the prosecution 25. The Court has perused the impugned judgment and order and the Sessions Court has given reasoning that the present incident has occurred on 08/10/2019 during 3:30 hours to 6:00 hours at night. No evidence to the effect that all or any of the accused were seen together meaning thereby Last Seen Together before a short time or any time before the present incident, has been produced by the Prosecution. The Prosecution has also failed to produce any kind of evidence with regard to causing the alleged injuries to the deceased by the present accused or any of the accused in this case. Considering the evidence of the witness No.7 of the Prosecution, at around 4:00 o’ clock in the early morning on the day incident took place, the accused No.1 called from the mobile phone bearing No.787430737252 of this witness to the mobile phone number 6355951185 and stated, “Bipin’s mobile phone is with me, both you and your brother Bipin come to take mobile phone. He had come to my maternal niece” and evidence in this regard has been adduced. Thus, as per the evidence of this witness, he has produced the evidence to the effect that he had a talk over the phone at around 4:00 o’clock. 26.The Prosecution has examined retired head constable Rameshbhai Somabhai Kharadi as witness No.22. As per his evidence, it has come on record that the declaration of accident note No.37/2019 has been made by Hiteshbhai Rameshbhai Ninama, the brother of the deceased. The cross examination of this witness has been conducted by the Prosecution, wherein the suggestion that Hiteshbhai has not declared the fact that, “I had gone to Andharia village and at that time, Thavraji Martaji called over the mobile phone and stated that, your brother Bipin’s mobile phone is with me and the said call was for our maternal niece. You and your brother Bipin come to take that mobile phone.” It has been accepted that such fact has not been declared in the declaration of accidental death. Therefore, if such important fact was stated by the accused over the phone, it is obvious that such fact would be mentioned in the declaration of accidental death, which was declared later. However such fact was not declared and therefore also, such evidences produced by the Prosecution cannot be relied upon. 27.The reliance placed upon the decision of decision of Apex Court in case of Sudha Renukaiah (supra), it would be pertinent to observe that the issue before the Court in this connection was recording of the statement of injured witness, who was unconscious for a long time and immediately after gaining of consciousness, his statement was recorded. However, the trial Court in this connection had recorded that the Investigating Officer had not taken the endorsement of the attending Doctor that PW-5 was in unconscious state of mind on the relevant days and therefore, there was negligence on the part of the Investigating Officer for not recording the statement of this witness forthwith. It is in this connection, the Apex Court had directed that such an error or negligence in the investigation, which resulted in some omission or defect, are required to be overlooked. In the facts of the present case, submission of the learned Advocate in this context is to treat the investigation as defective and therefore, necessary evidence has not come on record. In the facts of the present case, submission of the learned Advocate in this context is to treat the investigation as defective and therefore, necessary evidence has not come on record. It is required to be observed that with regard to defective investigation, the Investigating Officer was examined as PW-26 vide Exh-81. Perusal of this witness does not indicate about any question being put by the prosecution itself regarding defective investigation in connection with, which would lead to erroneous conclusion. At the best, allegation of defective investigation is of non-recording of statement of one Monika, whose name is running in the record of mobile service provider, to whom the mobile phone of witness; Vipul belongs to. When witness; Vipul himself has been examined, to him also, no such question regarding mobile number and its registered owner has been put to. In any case, in the facts of the present case, decision relied upon of the Apex Court, will not help the case of the appellant. 28.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. 29. 29. This Court while accepting the reasoning given by the Sessions Court and so also the separate reasoning given herein above, the Court does not find any reason to interfere with the impugned judgment and order. 30. In the result, the appeal fails and is dismissed. The judgment and order dated 19-01-2023 passed by Sessions Judge, Modasa, Arvalli, in Sessions Case No.3 of 2020 stands confirmed. Bail and bail bonds of the accused, if any, stand discharged. R & P be sent back to the concerned Trial Court.”