ORDER : To challenge the judgment dated 3rd January 2013 passed in Sessions Case No.23 of 2009, the State of Rajasthan has filed this acquittal appeal under section 378 of the Code of Criminal Procedure. 2. The case of the prosecution is narrated by Mohd. Hussain in the Parcha Bayan dated 1st April 2009. According to the informant, his younger brother Naseeb was married to Ashiya in the family of Kalu Khan at Naseerabad. On the date of the incident, the accused persons arrived at the house of the informant in the dead of the night and inquired about Ashiya who at that time was sleeping in the power house. This is also stated by the informant in the Parcha Bayan that his parents, wife and sister were sleeping in a room at the power house. At around 2:00 am in the intervening night of 31st March/1st April 2009, the accused persons armed with lathi (lakkadiya) and Kundale came there and started assaulting the parents of the informant. On hearing halla, when his brother Naseeb came there he was also assaulted by the accused persons. The informant further stated that when his neighbours, namely, Lala Ram Mali and Tulcha Ram came there the accused persons fled away on a Maruti van. On the basis of the statement given by Mohd. Hussain, a crime was registered vide F.I.R. No.64/2009 under sections 143, 451, 323 and 149 of the Indian Penal Code. Three days after the occurrence, Smt. Barkat Bai died and therefore the offences under sections 324, 325, 307, 460 and 302 of the Indian Penal Code were added in the report. 3. While the case was pending, Kalu Khan passed away on 5th March 2010 and Lala Ram also died on 21st December 2010 and accordingly the prosecution against Kalu Khan and Lala Ram was closed. 4. To establish the charge against Seema @ Samma Bano, Panchu, Basheer Khan and Lala Ram under sections 148, 460 and 302 of the Indian Penal Code; in the alternative under sections 302/149, 307 or 307/149, 325 or 325/149, 324 or 324/149 and section 323 or section 323 read with section 149 of the Indian Penal Code as framed against them, the prosecution laid evidence through 26 witnesses and produced 56 material objects and documents. 5. 5. On behalf of the accused persons, Sultan was produced as D.W.1 and certain documents were laid in evidence to demonstrate that they were implicated in the criminal case on account of past animosity. 6. Having regard to the materials brought on record in Sessions Case No.23/2009, the Sessions Court framed the following issues: English Translation: “………..1-Whether the accused broke into the house of the complainant Mohammad Hussain at night? 2-Whether the accused formed an unlawful assembly and in fulfillment of the general objective of the said assembly, hit the deceased Barkat Bano with a blunt weapon with an intention of killing her due to which, she died? 3-Whether the accused, being the members of the said unlawful assembly, hit the injured Naseeb with a sharp weapon and caused him simple injuries? 4-Whether the accused, being the members of the said unlawful assembly, hit the injured with a blunt weapon and caused simple and grievous injuries to them? 5-If yes, then what punishment do the accused deserve..?….” 7. After hearing the learned Public Prosecutor and the learned counsel for the defence, the Sessions Court rendered its opinion that the prosecution was not able to establish the charge under sections 149, 460, 325, 324 or 302 of the Indian Penal Code. However, the accused-respondents were convicted for committing the offence under sections 148 and 323 of the Indian Penal Code and were given benefit under section 4(1) of the Probation of Offenders Act 1958 on a condition that each accused furnishes a personal bond to the tune of Rs.2,000/- and a surety of the like amount. Also, the accused-respondents were directed to deposit Rs.1,000/- under section 5 of the Probation of Offenders Act before the Court for Prosecution expenses. 8. Challenging the aforesaid judgment rendered in Sessions Case No.23 of 2009, Mr. C.S. Ojha the learned Public Prosecutor submits that in a case where as many as 5 witnesses were produced by the prosecution who tendered evidence in the Court to the effect that the accused persons had started a murderous attack on the prosecution witnesses, on minor inconsistency or some contradiction in their evidence the prosecution case shall not fail. Mr. C.S. Ojha the learned Public Prosecutor submits that in a case where as many as 5 witnesses were produced by the prosecution who tendered evidence in the Court to the effect that the accused persons had started a murderous attack on the prosecution witnesses, on minor inconsistency or some contradiction in their evidence the prosecution case shall not fail. Mr. C.S. Ojha the learned Public Prosecutor has further submitted that on account of conviction of the respondents under section 323 of the Indian Penal Code their presence at the place of occurrence stood established and, in view of the medical report and death of Smt. Barkat Bai, they were liable to be convicted and punished for the offence of murder under section 302 of the Indian Penal Code. 9. Over the dead body of Smt. Barkat Bai, post-mortem examination was conducted by Dr. R.K. Mathur who made the following observations while tendering evidence as P.W.20: English Translation: “Chief-examination:- On 04.04.09, I was working as a Medical Jurist in J.L.N. Hospital, Ajmer. On that day I had conducted postmortem of the dead body of deceased Smt. Barkat Bano W/o Shri Kamal Khan, aged 50 years, R/o.- Ras, District Pali on the report of Police Station Officer- Ras, District- Pali. The postmortem report is Exhibit P.31, on which A to B are my signatures and from C to D, my opinion has been marked. The said lady was admitted in the casualty ward on 03.04.09 and she died on 03.04.09 at 5:20 p.m. as per admission ticket No.9828. The said lady was of normal height. On looking at the dead body of the said lady from outside, I found that there was stiffness in the whole body. The post-mortem staining was on the back side of the body. The following external injuries were found on the body of the said lady- (1) There was a 5 cm x 3 cm bruise in the epigastric region. (2) There was a 3 cm x 2 cm bruise on the left side of the chest. (3) There was a 2 cm x 2 cm bruise on the left hand. (4) There was a 1 cm x 1 cm bruise on the right leg. All the aforesaid abrasions had soft scabs on them. (2) There was a 3 cm x 2 cm bruise on the left side of the chest. (3) There was a 2 cm x 2 cm bruise on the left hand. (4) There was a 1 cm x 1 cm bruise on the right leg. All the aforesaid abrasions had soft scabs on them. After examining the abdomen of the said lady, I found the following injuries- There was a 1x1 cm tear in the small intestine, three tears of 1 cm x 0.5 cm, 1 cm x 1 cm, 1 cm x 0.5 cm in the transverse colon. Blood and faecal matter was present in the abdominal cavity. There was a linear tear of 1.5 cm x 1 cm on the right side of the liver. All other organs of the body were normal. In my opinion the cause of death was shock due to injury to the liver and intestines which was caused by a blunt weapon and was sufficient to cause death in the normal course of nature. All the aforesaid injuries were antemortem. It is true that I examined the deceased on 04.04.09 at 11:15 A.M. in the mortuary, Ajmer. It is true that the deceased had four external abrasions. The injury shown as Exhibit P.31, 2x2 cm abrasion on left, was not sufficient to cause death. Similarly, 1x1 cm abrasion on right leg was also not possible to cause death. The injury was 5 cm on left side of chest, below left nipple, 3 cm x 2 cm, between sixth and seventh ribs. It is true that there was no fracture in fifth and sixth ribs. Epigastric region is the part below the ribs on the front side of the body. I cannot tell what was the total area of epigastric region. He himself said that every person has different areas. The epigastric region does not have a right or left part and also does not have an upper or lower part. I did not measure the size of the deceased's liver. I did not measure the size of the right lower part of the liver either, because I did not consider it necessary. I did not preserve the blood that had accumulated on internal examination, because I did not consider it necessary. I did not take any substance from the small and large intestines. I did not measure the size of the right lower part of the liver either, because I did not consider it necessary. I did not preserve the blood that had accumulated on internal examination, because I did not consider it necessary. I did not take any substance from the small and large intestines. The faecal matter was in the state in which it occurs. The said faecal matter was 12 hours old. I have not shown the direction of the linear tear of the liver. There was only one tear on the right lobe of the liver and not three tears. Today, I cannot tell the direction of the tear on the basis of memory. The tear in the right lobe was towards the front. I have not written this. It is wrong to say that I am telling on the basis of memory. He himself said that the said tear is only towards the front side. There were three tears in the large intestine.” 10. The Sessions Court, having regard to the testimony of the prosecution witnesses that it was an open space where the family of the informant was sleeping in the night of 31st March 2009, held that the offence under section 460 of the Indian Penal Code was not established. We also accord our approval to such finding recorded by the Sessions Court. The star witnesses for the prosecution were P.W.7 Kamal Khan, P.W.10 Ashiya, P.W.11 Naseeb, P.W.21 Zareena and P.W.22 Mohd. Hussain. These witnesses claimed that P.W.7 Kamal Khan and P.W.11 Naseeb suffered injuries at the hands of the accused-respondents. To lay support to their testimony, the prosecution produced injury reports prepared by P.W.19 Dr. Sunil Kumar Bairva. The testimony of the injured witnesses such as P.W.7 and P.W.11 may assure the Court that they are the persons who were present at the place of occurrence. However, no special status can be accorded to the injured witness in a criminal trial and his testimony has to be examined with the same yardstick as of any other witness. This is a matter of record that there was a dispute between the parties regarding the matrimonial life of P.W.10 Ashiya with P.W.11 Naseeb. This is well settled that while examining the testimony of a prosecution witness the Court should adopt a cautious approach wherever a plea of false implication is advanced on behalf of the accused person. This is a matter of record that there was a dispute between the parties regarding the matrimonial life of P.W.10 Ashiya with P.W.11 Naseeb. This is well settled that while examining the testimony of a prosecution witness the Court should adopt a cautious approach wherever a plea of false implication is advanced on behalf of the accused person. In the context of false implication of the accused-respondents, we have also in our mind the general rule that the family members of the victim may not make false statements to implicate any innocent person in a criminal case. But, at the same time, this must be remembered that P.W.10 Ashiya is married to P.W.11 Naseeb and in normal circumstances she would not have gone opposite to the stand taken by her husband. In “Masalti v. State of U.P.” 1964 SCR (8) 133, the Hon’ble Supreme Court indicated the approach to be adopted by the criminal Court as under: “…….14. Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. …..” 11. The Sessions Court referred to various circumstances, such as, (i) presence of Seema @ Samma Bano at the place of occurrence, (ii) identification of the accused persons in the dark night (as stated by some of the witnesses including P.W.10) and (iii) failure of the prosecution to establish that Smt. Barkat Bai died a homicidal death on account of injuries caused to her by the accused persons. We have also examined the records of Sessions Case No.23/2009 and, in particular, on these aspects of the matter and find that there was considerable doubt on the prosecution story of the accused-respondents making murderous attack on the injured witnesses. The injury report prepared by P.W.19 Dr. Sunil Kumar Bairva indicates that P.W.7 and P.W.11 had suffered simple injuries except one injury over P.W.11 which could be said to have grievous in nature. But then, report of the Radiologist was not produced in the Court to establish that P.W.11 had suffered any grievous injury. P.W.20 observd only bruise marks over the dead body of Smt. Barkat Bai. There were small injuries in the small intestine and around the transverse colon but these were not sufficient to cause death. This is also a matter of record that the van driver turned hostile and the police statements of a few witnesses were taken after considerable delay. 12. We find some substance in the argument raised by the learned Public Prosecutor that on conviction of the accused-respondents under section 323 of the Indian Penal Code their presence stands established at the place of occurrence. However, in a criminal trial it is well remembered that it is the duty of the prosecution to establish the charge beyond all reasonable doubts. However, in a criminal trial it is well remembered that it is the duty of the prosecution to establish the charge beyond all reasonable doubts. The conviction of an accused and, that too, for the offences like 307 or 302 of the Indian Penal Code cannot be recorded on merely raising a spacious argument that the accused persons were present at the place of occurrence and therefore they are liable for the death of Smt. Barkat Bai. 13. As regards the power of the High Court to interfere with the judgment of acquittal, we would just indicate what the Privy Council has observed in “Sheo Swarup v. King Emperor” 1934 SCC Online PC 42: “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 slowness 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.” 14. After having examined the materials on record, we do not find any compelling reason to interfere with the judgment rendered in Sessions Case No.23 of 2009. 15. D.B. Criminal Appeal No.702 of 2013 is dismissed.