ORDER : UMESH A. TRIVEDI, J. 1. This is an application filed under Sub-section (3) of Section 378 of the Code of Criminal Procedure, 1973 praying for leave to appeal against the judgment and order of acquittal recorded by learned 6th Additional Sessions Judge, Banaskantha at Deesa, dated 25.10.2023, in Sessions Case No.67 of 2021, whereby respondent-accused came to be acquitted of the charge levelled against him. 2. Prosecution case is, in brief, as under:- 2.1 On 29.3.2021 at about 9.30 p.m., just opposite Bank of Baroda, on a public road, respondent-accused met deceased and demanded his dues. At the same time, respondent-accused was also abusing the deceased. When the deceased tried to prevent him from using abusive language, he gave pipe blow on the head of the deceased. First informant-Hiteshbhai Ambaji Solanki, who happens to be the brother of the deceased, stated in his information that aforesaid facts came to be informed by his deceased brother on asking by him. Respondent-accused was working as a Conductor in his goods vehicle. The aforesaid disclosure was made by the deceased in presence of not only the first informant, according to the case of the prosecution, his father, sister-in-law and neighbours were present there. After he was brought to home, his deceased brother was treated with turmeric powder filling it on the wound over the head. However, after sometime, there was chest pain. First informant along with his cousin took the deceased in a rickshaw for the purpose of treatment. The doctor present in the hospital declared him ‘brought dead’. Therefore, dead-body was sent for the purpose of postmortem in the hospital. As per the case of the prosecution, after postmortem, dead-body was entrusted to the first informant and his family members and they performed cremation thereafter. After cremation, all came back home and they were informed about the incident. However, the persons, who attended cremation, advised to give complaint against the accused and, therefore, on next date to the incident i.e. on 30.3.2021 at about 3 p.m., an FIR came to be registered. 2.2 Pursuant to the registration of FIR, investigation was carried out and on conclusion of it, a charge-sheet came to be filed before the competent Court. However, the persons, who attended cremation, advised to give complaint against the accused and, therefore, on next date to the incident i.e. on 30.3.2021 at about 3 p.m., an FIR came to be registered. 2.2 Pursuant to the registration of FIR, investigation was carried out and on conclusion of it, a charge-sheet came to be filed before the competent Court. Since learned Magistrate does not have jurisdiction to try the accused for the offence alleged against him, he committed it to the Court of Sessions that is how the case was posted for the purpose of trial before the learned Judge. After recording evidence on behalf of the prosecution and hearing the parties, learned Judge has passed aforesaid judgment and order acquitting the respondent-accused of the charge levelled against him. 3. Ms.Vrunda Shah, learned APP vehemently submitted that though eye witnesses may have turned hostile, when they were cross-examined by the learned APP, they have denied certain facts to be not stated in the police statement. However, drawing the attention of the Court to the deposition of the investigating officer, it is submitted that he has very categorically deposed to before the Court that such facts were stated before the police. Therefore, according to her, deposition of investigating officer should have been believed read with the evidence of other witnesses brought on record by the prosecution. She has further submitted that since the deceased had only two injuries over head, that too, lacerated wound, it may have caused with weapon of offence but it might not have stained with blood as there was no bleeding out of the wound. Therefore if no blood stains are found over the weapon of offence i.e. pipe, it cannot be a ground to record an order of acquittal in favour of the accused. She has further submitted that when wife of the deceased, who is examined as PW-16, Pinkiben, deposed to before the Court that on receiving phone call from the husband, when she reached the place of offence, respondent-accused was hitting her husband on head with pipe. Therefore, it is submitted that her such assertion is corroborated by the deposition of Dr.Atharhussain Vahidkhan, PW-24, Exh.69, as also injuries were found and it is also corroborated by postmortem note, Exh.70. She has further submitted that final cause of death is said to be brain hemorrhage and its complications due to head injury. Therefore, it is submitted that her such assertion is corroborated by the deposition of Dr.Atharhussain Vahidkhan, PW-24, Exh.69, as also injuries were found and it is also corroborated by postmortem note, Exh.70. She has further submitted that final cause of death is said to be brain hemorrhage and its complications due to head injury. Thus, according to her submission, when doctor has deposed to before the Court that injuries found on the deceased were possible by muddamal pipe and those injuries are held to be fatal, accused should have been convicted for an offence under Section 302 of the Indian Penal Code. She has further submitted that though panch witnesses to the discovery of weapon panchnama have turned hostile, investigating officer in his deposition before the Court has stated with regard to discovery of it at the instance of the accused and, therefore, there is no reason to dis-believe the case of the prosecution. 3.1 In short, she submitted that this application for leave to appeal be granted and appeal be admitted. 4. Though coordinate Bench of this Court while hearing this application issued notice, endorsement on the cause-list shows that notice is served, the respondent is not present either in person or through advocate. There is nobody to proceed with the case. Therefore, the Court has determined to conclude the hearing. However, before that vide order dated 2.7.2024, Record and Proceedings of the case from the trial Court was called for, which is received by this Court. 5. Heard Ms.Vrunda Shah, learned APP. Perused the depositions along with documents from the Record and Proceedings, as also the reasons assigned by the learned Judge for recording an order of acquittal. 6. Though as per the case of prosecution, first informant derived knowledge about the incident from the deceased, as claimed in the First Information Report in presence of other witnesses including neighbors of the deceased, there is no evidence brought on record by the prosecution to substantiate it. Even the first informant, who claims to have derived knowledge of the incident from the deceased himself, in the cross-examination conducted on behalf of the accused, he has admitted that when he reached home, his deceased brother was unconscious. Even the first informant, who claims to have derived knowledge of the incident from the deceased himself, in the cross-examination conducted on behalf of the accused, he has admitted that when he reached home, his deceased brother was unconscious. If he was unconscious and taken to the hospital where doctor declared him ‘brought dead’, there is no question of deceased making any statement to the first informant based on which FIR could have been registered against him. Perusing his deposition, PW-9, Exh.37, in examination in chief, he stated about the knowledge derived from his brother on asking him, to which deceased disclosed assault by the respondent-accused. However, in crossexamination, he has clearly admitted that when he reached home, his deceased brother was unconscious. At the same time, he has further admitted that present complaint came to be filed after consultation and discussion with his uncles. Despite his brother received injuries, when he asked his father and sister-in-law that why he is not taken to hospital, it was disclosed that his deceased brother was not ready to go to the hospital. However, he has stated in his cross-examination that his deceased brother was taken to the hospital just opposite his house. However, the doctor refused to give treatment and advised them to take him to the Civil Hospital. No such facts are disclosed by the first informant either in the FIR or in the examination-in-chief. All these factors go to show that nobody knew, who assaulted the deceased and no such information is divulged by the deceased, as claimed by the prosecution. There is detailed cross-examination of the first informant with regard to the existence of several hospitals in and around 15 minutes distance from the place of incidence, strangely deceased was not taken to any hospital there. Such witness is cross-examined in detail with regard to different hospitals including government hospitals within the close distance despite that there is no attempt made by any witnesses to take the deceased to the hospital. Such conduct of the witnesses creates doubt about anything being stated by the deceased to them coupled with the fact that first informant in his cross-examination had to admit that when he reached home, his brother was unconscious, leaving no scope to state anything about the incident to the first informant. 7. Such conduct of the witnesses creates doubt about anything being stated by the deceased to them coupled with the fact that first informant in his cross-examination had to admit that when he reached home, his brother was unconscious, leaving no scope to state anything about the incident to the first informant. 7. Coming to the deposition of PW-16, Pinkiben, wife of the deceased, who claimed that she reached the place of offence on receiving a phone call on her mobile, she went there with her father-in-law and noticed that one Chandu Thakore, Shailesh Thakore, and Rama Thakore were there. In examination-in-chief, she claimed that the accused Shailesh Thakore was hitting her husband with pipe over the head. She has further stated that he gave blow with pipe on his hands as well. However, on seeing them, respondent-accused flee away. Though witness Pinkiben claims that her brother-in-law i.e. first informant Hiteshbhai reached home and asked his brother, to which he disclosed there was scuffle, assault with pipe, Rs.200/- were asked for by the Shailesh i.e. deceased for drinking liquor. If at all she was present when his brother-in-law, first informant Hiteshbhai asked deceased, there should be consistent deposition by her brother-in-law or by her as well. As such, considering the cross-examination of the first informant, Hiteshbhai, when he reached home, his brother was found to be unconscious and there appears no occasion to ask him anything and the deceased telling anything to them. 8. Furthermore, witness Pinkiben, PW-16, wife of the deceased, claims to be an eye witness to the incident stating that the accused had hit over his hands also. However, if the postmortem note, Exh.70, is seen, there are only two external injuries found on the deceased, that too over head. It proves that witness Pinkiben is not an eye witness to the incident. At the same time, when her husband called her, deceased asked her to come quickly as he is going to die, it would suggest that assault might have been over by that time, leaving no scope for her to witness the alleged incident. It proves that witness Pinkiben is not an eye witness to the incident. At the same time, when her husband called her, deceased asked her to come quickly as he is going to die, it would suggest that assault might have been over by that time, leaving no scope for her to witness the alleged incident. Over and above that in cross-examination on behalf of the accused, she had to admit that she has not so stated in her police statement that when she reached the spot, Chandu Thakore, Shailesh Thakore respondent-accused or Rama Thakore were present, accused Shailesh Thakore gave pipe blow to the deceased over his head and hands. If that is so, it is most material improvement in her deposition before the Court, that too, to pose herself as an eye witness. At the same time, she has narrated in chief examination that her brother-in-law i.e. the first informant Hiteshbhai asked her husband what has happened to him, to which the deceased disclosed the story of assault by the accused. This is again an attempt to involve the accused. If cross-examination of first informant Hiteshbhai is seen, he claimed that when he reached home, his deceased brother was unconscious, leaving no occasion for anyone to ask what has happened to him and how. 9. If cross-examination of witness Pinkiben is seen, she has admitted that her husband was taken to the hospital of Dr.Ganeshbhai. However, no such papers of treatment at the hospital of Dr.Ganeshbhai are produced by the prosecution nor Dr.Ganeshbhai is examined by the prosecution to prove that assertion. Not only that two person, Chandu Thakore and Rama Thakore, who were present with the accused when this witness reached there, neither of them are examined before the police. No reasons are assigned by the prosecution for either not recording their statements or not examining before the Court. 10. Another eye-witness, PW-18, Mahendrabhai Govindbhai Luhar, is examined by the prosecution. However, such witness deposed to before the Court only in respect of verbal altercation between the deceased and the accused and, thereafter, they were separated and went to their respective homes. Nothing further is deposed to by the said witness in his deposition. Therefore, said witness came to be declared hostile to the case of prosecution. However, such witness deposed to before the Court only in respect of verbal altercation between the deceased and the accused and, thereafter, they were separated and went to their respective homes. Nothing further is deposed to by the said witness in his deposition. Therefore, said witness came to be declared hostile to the case of prosecution. He was also cross-examined by the learned APP, after declaring him hostile, but nothing has been brought on record, which can support the case of prosecution by conducting even cross-examination. 11. As recorded in the impugned judgment and order, all the panch witnesses have not supported the case of the prosecution, though deceased has died because of head injuries, there are no witnesses to depose before the Court who caused it. The so-called claim made by the first informant about occurrence of incident told to him by the deceased on asking, if his cross-examination is read it creates doubt about genuineness of it, as he had to admit in cross-examination about the unconscious state of the deceased when he reached home. 12. Not only that to connect the respondent-accused with the crime, a discovery panchnama is claimed to have been drawn by the prosecution. However, panch witnesses to the said panchnama have not supported the case of the prosecution. At the same time, investigating officer has also not deposed to in respect of disclosure statement and pursuant thereto he led them for recovery of any object, as claimed by the prosecution, is there. Over and above that PW-16, Pinkiben wife of the deceased, has stated that muddamal pipe might not have been used for commission of offence but a pipe like this was used by the accused. At any rate, if two contused lacerated wounds are there on head by using said pipe, it may contain trace of blood over the same. However, no blood stains are found over the said pipe nor blood stains on the cloths of the accused worn at the time of incident, which claimed to have been discovered at the instance of the accused, is found. 13. In short, there appears no evidence to suggest that respondent-accused has committed crime, that too, an offence of murder. However, no blood stains are found over the said pipe nor blood stains on the cloths of the accused worn at the time of incident, which claimed to have been discovered at the instance of the accused, is found. 13. In short, there appears no evidence to suggest that respondent-accused has committed crime, that too, an offence of murder. Not only that there are no witnesses to the incidence, and there is no corroboration as well to any part of the evidence led before the Court by any scientific or other contemporaneous record. 14. Therefore, on re-examination and re-appreciation of evidence of witnesses and scrutinizing documents produced and proved by the prosecution, we find no error in the judgment which call for interference. 15. Learned Judge has discussed the evidence of each witness in detail and recorded a well-reasoned finding acquitting the accused. Keeping in mind, well celebrated principles of interference in acquittal appeal, we see no reason to interfere in the well-reasoned judgment and order of acquittal recorded by the learned Judge. Hence, we refuse to grant leave to file appeal and dismiss this application. Record and Proceedings may be sent back forthwith.