ORDER : 1. This Acquittal Appeal is directed against the judgment dated 13th July 2007 passed in Sessions Case No. 29 of 2007. 2. By the said judgment, Mohd. Juber, Gaffur Khan, Raish Mohd., Akhtar Hussain, Gulam Hussain, Bhupendra Giri and Jamil Khan were acquitted of the criminal charges framed against them under sections 148 and 302 of the Indian Penal Code; alternatively under section 302/149 and section 307 of the Indian Penal Code, or alternatively under section 307/149 and section 341 of the Indian Penal Code. The respondent No. 5, namely, Gulam Hussain was also acquitted of the charge under section 4/25 of the Arms Act. 3. As it appears from the judgment dated 13th July 2007, Jamil Khan was arrested after the charges against the other accused-respondents were framed and, therefore, a separate charge under section 302/120-B of the Indian Penal Code was framed against Jamil Khan. 4. On the basis of a report submitted to the Officer-in-Charge of Kotwali Chittorgarh P.S. Criminal Case No. 821/2004 was lodged under sections 147, 148, 149, 341, 323, 324, 302 and 307 of the Indian Penal Code. In course of the investigation, the dead body was sent for postmortem examination and his blood-soaked clothes, shoes and the motor vehicle were seized. The police also collected blood-soaked clothes of the witness Mohd. Haneef @ Annu. These articles were sent for the FSL report and that was produced during the trial as Exhibit P-75. 5. The case of the prosecution is that Mohd. Sarif and Mohd. Haneef were proceeding on a motor cycle towards the Handicrafts Convention and, when they arrived near Jain Mandir, the accused persons came on two motor cycles and started assaulting them. This is the allegation made in the written report that Gulam Hussain attacked Mohd. Sarif with sword and caused injury over his right leg with an intention to cause his death. In the occurrence, Mohd. Haneef also suffered injuries but somehow he could escape and saved his life. 6. During the trial, the prosecution examined 29 witnesses and laid in evidence certain documents including the postmortem examination report. On behalf of the accused persons, 5 witnesses were examined who disputed the seizure of sword and other articles by the Investigating Officer. In the occurrence, Mohd. Haneef also suffered injuries but somehow he could escape and saved his life. 6. During the trial, the prosecution examined 29 witnesses and laid in evidence certain documents including the postmortem examination report. On behalf of the accused persons, 5 witnesses were examined who disputed the seizure of sword and other articles by the Investigating Officer. These witnesses deposed in the Court that they are the residents of the place near to the place of occurrence and they did not observe the presence of the accused persons at the time and place of occurrence. 7. The learned Sessions Judge on appreciation of the evidence laid by the prosecution and on behalf of the defence held as under: “18. According to the evidence discussed above, my conclusion is that the eyewitnesses of the incident are Mustaak who lodged the First Information Report and Mohammad Haneef alias Annu who was injured in the incident and in whose presence the incident took place. Mohammad Haneef has sustained injuries in the incident but he has turned hostile in the court and has not said that any of the accused assaulted him, rather he has told a different story in the court statements that a Marshall vehicle came near the Jain temple on the fort in which there were two-three girls besides men, the deceased Mohammad Sharif molested those girls due to which a fight broke out between them, those people had sticks, swords etc. in the vehicle with which they assaulted him. Mustaak fled from there and Mohammad Sharif sustained injuries in the incident due to which he died and he sustained injuries while trying to save himself. Mustaak has said that he did not lodge a report, he does not know any of the accused, the assault was done by the people who came in the Marshall vehicle. Thus both the eyewitnesses have been declared hostile, they do not support the prosecution story. 19. As far as the circumstantial evidence is concerned, it has been mentioned in the FIR that Gulam Hussain hit the deceased on his knee with a sword. But Mustaak has not confirmed it in the court. Thus both the eyewitnesses have been declared hostile, they do not support the prosecution story. 19. As far as the circumstantial evidence is concerned, it has been mentioned in the FIR that Gulam Hussain hit the deceased on his knee with a sword. But Mustaak has not confirmed it in the court. Gulam Hussain has been arrested through memo Exhibit P13, Through memo Exhibit P72 information about it has been recorded by the investigation officer PW-29 Bhanwar Singh under the Evidence Act and in the course of this information, memo Exhibit P36 sword has been recovered, the recovery of which is not confirmed by witnesses Mukesh and Khalil Ahmed. According to Mukesh's statement, he does not know the accused and according to Khalil Ahmed, all the paperwork was done at the police station and both these witnesses do not confirm the statement of the investigation officer that the sword was recovered on the information of the accused. Since the prosecution has not been able to prove the recovery beyond doubt, the report of the forensic science laboratory, Exhibit p75, shows that “A” blood group was found on the sword and “A” group blood was found on the clothes of the deceased. This situation cannot be made the basis of conviction because the recovery made from the accused has not been proved beyond doubt. In this context, rulings have also been presented by the defense that the accused cannot be convicted in the case of murder only on the basis of the forensic science laboratory report unless there is any other witness in support of it. I find that in this entire case, no such situation arises that the accused Gulam Hussain had caused any injury to the deceased Mohammad Sharif. 20. A sword has been recovered from another accused Bhupendra Giri. The recovery of this sword has not been proved beyond doubt. Both the witnesses of the recovery Mukesh and Khalil Ahmed have been declared hostile, Mukesh has said that he does not know the accused and Khalil Ahmed has said that the paperwork was done at the police station and it is not known whether the accused was present at the place of recovery or not. In such a situation, the recovery is not proved beyond doubt. 21. There is no other evidence of the prosecution that the remaining accused were the aggressors in this case. In such a situation, the recovery is not proved beyond doubt. 21. There is no other evidence of the prosecution that the remaining accused were the aggressors in this case. According to the statements of the eyewitnesses of the incident, the presence of the accused is not proved, the people who assaulted were from the Marshall vehicle and not the people riding on the motorcycle. During the investigation, the motorcycle was recovered on the information of the accused, but this recovery also does not link the accused and only on the basis of recovery of the motorcycle, it cannot be believed that the accused murdered the deceased. 22. Witnesses DW-1 Ahmad Noor, DW-2 Chand Ali, DW-3 Narendra Singh, DW-4 Abhinandan and DW-5 Mahendrapal Singh have also been produced by the defence and it has been stated that the recovery shown by them is fabricated, the police did not come to the scene of crime to make any such recovery because they live there and they have all the information about the scene of crime. The information given by the accused under section 27 Evidence Act has been recorded and in the course of this information the cene of crime has been verified and the accused have given information that they can go and tell the place of crime where the deceased was murdered. This information was recorded by the accused on 24.12.04 and the scene of crime was verified on the same day. The police came to know on the day of the incident, i.e. 20.12.2004, that the place where the fight took place was a certain place and on 24.12.2004, the accused were asked to verify the place of the incident. In this regard, I find that the information which the police already has and then verifying it later from the accused has no value as evidence. Consequently, this circumstantial evidence of the prosecution is also of no help. 23. On the basis of the above discussion, the prosecution has failed to prove beyond doubt the crimes alleged against the accused Mohammad Juber alias Sheru, Gaffur Khan, Raish Mohammad, Akhtar Hussain alias Aabid, Gulam Hussain, Bhupendra Giri and Jamil Khan, hence the accused are entitled to be acquitted of the alleged crimes. ORDER: 24. 23. On the basis of the above discussion, the prosecution has failed to prove beyond doubt the crimes alleged against the accused Mohammad Juber alias Sheru, Gaffur Khan, Raish Mohammad, Akhtar Hussain alias Aabid, Gulam Hussain, Bhupendra Giri and Jamil Khan, hence the accused are entitled to be acquitted of the alleged crimes. ORDER: 24. Therefore, accused Gulam Hussain, Bhupendra Giri are acquitted of the offences under sections 148,302 alternative to 302/149, 307 alternative to 307/149,341 of the Indian Penal Code and section 4/25 of the Arms Act, accused Jamil Khan is acquitted of the offences under section 302/120-B of the Indian Penal Code and remaining accused Mohammad Juber alias Sheru, Gaffur Khan, Raish Mohammad, Akhtar Hussain alias Aabid are acquitted of the offences under sections 148, 302 alternative to 302/149, 307 alternative to 307/149, 341 of the Indian Penal Code.” 8. After having examined the materials on record, we have formed an opinion that the judgment of acquittal dated 13th July 2007 is well considered and well reasoned. 9. The two prime witnesses for the prosecution PW-1 Mohd. Haneef and PW-7 Mohd. Mustaak turned hostile when they came in the witness box and did not support the prosecution case. Section 154 of the Evidence Act provides that the party examining a witness may cross examine him with the permission of the Court if the witness so produced does not support his case. 10. PW-1 and PW-7 flatly refused to identify the accused persons in the dock and they were cross examined by the Public Prosecutor after taking permission of the Court. 11. In Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 the Hon’ble Supreme Court held that the evidence of a witness who does not support the prosecution is not altogether irrelevant and the prosecution can rely on his evidence to the extent that such evidence supports the case of the prosecution. However, there is nothing in the evidence tendered by PW-1 and PW-7 that goes to support the prosecution’s case. In so far as the recovery of sword from Bhupendra Giri and Gulam Hussain is concerned, the Sessions Court rightly held that when the seizure witnesses did not support the prosecution on the point of seizure of the sword, such evidence cannot be relied upon by the prosecution. In so far as the recovery of sword from Bhupendra Giri and Gulam Hussain is concerned, the Sessions Court rightly held that when the seizure witnesses did not support the prosecution on the point of seizure of the sword, such evidence cannot be relied upon by the prosecution. Even so, recovery of the crime weapon cannot be the sole ground on the basis of which an accused can be convicted for a serious offence like murder [Refer: Brijesh Mavi v. State (NCT of Delhi), 2012 (7) SCC 45 ]. 12. The powers of the High Court to re-appreciate the evidence laid during the sessions trial extend to recording a finding against the accused persons. But then, the powers under section 378 of the Code of Criminal Procedure can be exercised only for the compelling reasons and not otherwise. As held by the Hon’ble Supreme Court in Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415 , one of the compelling reasons can be that the trial Judge committed serious error in law and recorded a finding which can be said to be perverse and for that reason failure of justice has occasioned. In Sheo Swarup v. King Emperor, 1934 SCC Online PC 42, the Privy Council held as under: “Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence3 upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reserved. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper wait and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly now weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the showness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.” 13. In a case in which the eye witnesses turned hostile and the seizure witnesses did not support the prosecution on recovery of swords from the possession of the accused persons, there is no compelling reason to overturn the judgment of acquittal recorded in Sessions Case No. 29 of 2007 and, therefore, D.B. Criminal Appeal No. 132 of 2008 is dismissed.