JUDGMENT : Pushpendra Singh Bhati, J. 1. This criminal appeal under Section 374(2) Cr.P.C. has been preferred claiming the following relief: “It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused appellant may be acquitted of all the charges levelled against him and he be set at liberty.” 2. The accused-appellant laid a challenge to the judgment of conviction and order of sentence dated 30.01.1997 passed by the learned Sessions Judge, Balotra, (‘Trial Court’) in Sessions Case No.27/95 (State of Rajasthan Vs. Girdhari Singh), whereby the accused-appellant has been convicted and sentenced as below: Offence under Section Sentence Fine 302 IPC Life Imprisonment Rs.5,000/-, in default of which, was ordered to undergo further 6 months R.I. 3. Brief facts of this case, as placed before this Court by learned counsel for the accused-appellant, are that on 02.09.1995 at around 9:40 p.m., one Sultan Singh (complainant, since deceased) had submitted a report (Ex.P-3) before the Police Station, Kalyanpur stating that on the said date, at around 4:00 p.m., in front of his house, he was sitting with one Badar Ji in Badar Ji Pole, and at that time, Girdhari Singh (accused-appellant) arrived there and asked as to why the complainant criticizes the accused-appellant, and while asking so, the accused-appellant started beating the complainant. 3.1. As a result of such beatings, the complainant sustained injuries on ribs. It was further stated in the report that when the complainant tried to stand and leave the place, the accused-appellant intercepted his way and again started beating the complainant, as a consequence whereof, he sustained an injury on forehead; one Ghewar Ji and others, who were nearby, rescued the complainant, whereafter the complainant’s sons namely, Bhagirath Singh and Ratan Singh took the complainant to his house. 3.2. On the basis of the aforementioned report, the police registered a case for the offences under Sections 341 & 323 IPC. The accused-appellant was arrested on 13.09.1995. However, during the course of investigation, complainant Sultan Singh died while undergoing treatment in Mahatma Gandhi Hospital, Jodhpur on 28.09.1995, and thus, after investigation, the police filed a charge-sheet against the accused-appellant under Section 302 IPC. 3.3. The accused-appellant was arrested on 13.09.1995. However, during the course of investigation, complainant Sultan Singh died while undergoing treatment in Mahatma Gandhi Hospital, Jodhpur on 28.09.1995, and thus, after investigation, the police filed a charge-sheet against the accused-appellant under Section 302 IPC. 3.3. The learned Trial Court framed the charges against accused-appellant under Sections 302, 307 & 447 read with Section 34 IPC; the said charges were read over to the accused-appellant, which they denied and claimed to stand due trial and the trial accordingly commenced thereafter. 3.4. During the course of trial, the evidence of 16 prosecution witnesses were recorded and 48 documents were exhibited on behalf of the prosecution; in defence, 02 documents were exhibited, whereafter, the accused-appellant was examined under Section 313 Cr.P.C., in which he pleaded innocence and his false implication in the criminal case in question. 3.5. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused-appellant, as above, vide the impugned judgment of conviction and order of sentence dated 30.01.1997, against which the present appeal has been preferred by the accused-appellant. 4. Learned counsel for the accused-appellant submitted that incident in question had happened on 02.09.1995 and the deceased died on 28.09.1995, i.e. after 26 days of the incident, which shows that the injuries were not sufficient to cause the death in question, as the deceased was already suffering with serious ailment, which resulted into his death. 4.1. It was further submitted that the two eyewitnesses namely, PW.1-Badar Singh and PW.5-Ghewar Ram, did not support the prosecution story and had turned hostile during the trial. It was also submitted that the recovery witnesses namely, PW-6 Lekh Singh & PW-7 Bhoparam had also turned hostile. 4.2. It was also submitted that PW. 3- Bhagirath Singh and PW.4-Ratan Singh, though were produced by the prosecution as eyewitnesses, they were not even present at the place of incident in question at the relevant time, thus their testimonies were nothing but a piece of improved version. It was further submitted both the said witnesses were the interested witnesses, being sons of the deceased. 4.3. 3- Bhagirath Singh and PW.4-Ratan Singh, though were produced by the prosecution as eyewitnesses, they were not even present at the place of incident in question at the relevant time, thus their testimonies were nothing but a piece of improved version. It was further submitted both the said witnesses were the interested witnesses, being sons of the deceased. 4.3. It was further submitted that the F.I.R was lodged by the deceased himself, and after 26 days from the date of FIR, he died while undergoing treatment, and thus, the said FIR was treated as a dying declaration, but the same is not covered under Section 32 (1) of the Indian Evidence Act, 1872 because the injuries sustained by the deceased on the ribs and the forehead, were not stated as the cause of death. Moreover, the deceased on 26.09.1995 i.e. two days prior to his death (28.09.1995), had suffered a cardiac arrest. 4.4. It was also submitted that PW.8- Dr. A.L. Chouhan and PW.12- Dr. N.M. Kothari did not state anything in their testimonies which could establish that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause his death, but the learned trial Court had failed to consider this material aspect of the matter and convicted the accused-appellant, which is not justified in law. 4.5. It was further submitted that no FSL report, in regard to blood stain in lathi was placed on record by the prosecution and therefore, looking into the said aspect and the other material on record, the impugned judgment is not sustainable in the eye of law. 4.6. In support of such submissions, learned counsel relied upon the judgment rendered by the Hon’ble Apex Court in the case of Abhishek Sharma Vs. State (Government of NCT of Delhi) (Criminal Appeal No.1473/2011, decided on 18.10.2023). 5. On the other hand the learned Public Prosecutor while opposing the submissions made by the learned counsel on behalf of the accused-appellant submitted that the FIR was lodged by the deceased and thereafter, he was admitted in the hospital for treatment of injuries caused by the accused-appellant, and subsequently died while undergoing the said treatment, and therefore, the said FIR has rightly been considered as dying declaration by the learned trial Court. 5.1. 5.1. It was further submitted that a total of 5 injuries were caused by the accused-appellant and the deceased died due to such injuries, which is clearly proved from the record. It was also submitted that the injuries stated to have been sustained by the deceased, at time of registration of FIR, did match with the medical evidence. 5.2. It was further submitted that the accused-appellant caused the death of the deceased and therefore, the learned trial Court after considering every aspect of the case, convicted the accused-appellant under Section 302 IPC, which is justified in law. 6. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgment cited at the Bar. 7. This Court observes that the complainant (since deceased) filed a written report (Ex.P/3) on 02.09.1995 stating therein that the accused-appellant attacked him and caused a total of 5 injuries and on the basis of the same, FIR (Ex.P/13) was registered under Sections 341 and 323 IPC, whereafter, the complainant (since deceased) died on 28.09.1995 during treatment, and thus, Section 302 IPC was added against the accused-appellant. The learned Trial Court conducted the trial and convicted and sentenced the accused-appellant, as above, vide the impugned judgment of conviction and order of sentence. 8. This Court further observes that the two eye witnesses of the incident PW.1-Badar Singh and PW.5- Ghewar Ram had turned hostile during the trial and other witnesses i.e PW. 3- Bhagirath Singh and PW.4- Ratan Singh (sons of the deceased), though produced as eye witnesses during the trial, but their testimonies as eyewitnesses were clearly discarded by the learned Trial Court because they were not even present at the place of incident in question at the relevant time, rather improved their versions, and their statements recorded before the police had major contradictions. 9. This Court also observes that as per perusal of the testimony of PW.16-Dr. Ajay Malviya, he did not state as to what was the ultimate cause of death of the deceased, and the inner injuries sustained by the deceased, in the given circumstances, might have been caused due to his falling down on a hard object i.e. chowki. This Court further observes that the deceased had undergone the multiple operations, which fact was duly supported by PW.13- Dr. V.K. Malhotra. 10. This Court further observes that the deceased had undergone the multiple operations, which fact was duly supported by PW.13- Dr. V.K. Malhotra. 10. This Court also observes that both the witnesses (motbirs) i.e. PW.6- Lakh Singh and PW.7- Bhopa Ram, of recovery of lathi (weapon), had turned hostile during the trial. This Court further observes that the police authority recovered the lathi (weapon), which was used by the accused-appellant to cause injuries to the deceased, but there is nothing on record which could show the presence of blood stain on lathi and also no FSL report was placed on record. 11. This Court further observes that as per the record, the learned Trial Court itself mentioned in the impugned judgment that there was no intention/motive on the part of the accused-appellant to commit the crime in question and the entire incident had happened in a broad daylight, and thus, if the accused-appellant wanted to kill the deceased, then he could not have attacked the deceased with lathi in a broad daylight daylight, that too, in the presence of the some persons, and therefore, the entire prosecution story is quite doubtful and not reliable. 12. This Court also observes that the FIR was lodged by the deceased himself and after the 26 days of lodging of the said FIR the deceased died and the said FIR was taken as a dying declaration of the deceased, in accordance with Section 32 (1) of the Indian Evidence Act, 1872. This Court further observes that during the period of 26 days i.e. right from the date of the incident to the death of the deceased, no attempt was made to record his statements, nor any dying declaration was recorded; in furtherance, the deceased was already suffering from an illness and before his death, he suffered a cardiac arrest on 26.09.1995, which fact was duly supported by PW.16-Dr. Ajay Malviya. 12.1. This Court further observes that it is very doubtful that the deceased died because of those 5 injuries caused by the accused-appellant, and the prosecution story when seen in conjunction with the other evidence and the fact that most of its witnesses had turned hostile, casts a shadow of doubt on the prosecution version. 13. Ajay Malviya. 12.1. This Court further observes that it is very doubtful that the deceased died because of those 5 injuries caused by the accused-appellant, and the prosecution story when seen in conjunction with the other evidence and the fact that most of its witnesses had turned hostile, casts a shadow of doubt on the prosecution version. 13. This Court also observes that when the judgment of conviction is challenged before the Appellate Court, a proper appreciation of the evidence recorded by the learned Trial Court has to be made. The power of the Appellate Court is provided under Section 386 of Cr.PC, which reads as under:- “386. Powers of the Appellate Court.— (b) in an appeal from a conviction— (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same— 13.1. This Court further observes that as provided under Section 386(b)(i) Cr.P.C., the Appellate Court has the power to reverse the findings of the conviction, so as to acquit the accused. 14. Now, as regards, the scope of interference in the judgment of conviction passed by the learned Trial Court, it is considered appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Apex Court in case of Kamlesh Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC 263 , as hereunder:- 10. In Rama v. State of Rajasthan [ (2002) 4 SCC 571 : 2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4) “4. … It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law.” 12. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law.” 12. Recently, a three-Judge Bench in Majjal v. State of Haryana [ (2013) 6 SCC 798 ] has ruled thus: (SCC p. 800, para 7) “7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.” 15. This Court has taken into due consideration the entire evidence and the fact that the eyewitnesses PW.1 and PW.5 as well as the recovery witnesses i.e PW.6 and PW.7 had also turned hostile during the trial, no FSL report was there regarding the blood stain on lathi (weapon), absence of intention of the accused-appellant to commit the crime in question, no prior enmity between the accused-appellant and deceased, deceased had died after the 26 days of the incident and was also suffering from the illness, and that the other two important prosecution witnesses were sons of the deceased i.e PW.3 and PW.4, and had major contradiction in their statements recorded during the investigation. 16. This Court also observes that there are reliable and cogent evidence on record which shows that the accused-appellant’s conviction deserves to be reversed, from conviction to acquittal, as provided under Section 386(b)(i) of Cr.P.C “reverse the finding and sentence and acquit”. 17. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, as well as in view of the aforementioned precedent laws, the present appeal is allowed. 17. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, as well as in view of the aforementioned precedent laws, the present appeal is allowed. Accordingly, while quashing and setting aside the impugned judgment of conviction and order of sentence dated 30.01.1997 passed by the learned Sessions Judge, Balotra, in Sessions Case 27/95 (State of Rajasthan Vs. Girdhari Singh), the accused-appellant is acquitted of the offence under Section 302 IPC. The appellant was granted bail vide order dated 10.03.1997 passed by a Coordinate Bench of this Hon’ble Court in D.B. Criminal Misc. Bail Application No.44/1997. His bail bonds stand discharged. 17.1. Keeping in view the provision of Section 437-A Cr.P.C., the accused-appellant is directed to furnish a personal bond in a sum of Rs. 25,000/- and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the accused-appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court as soon as he would be called upon to do so. 17.2. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.