JUDGMENT : Justice A.Y. Kogje, J. 1. This appeal is filed challenging the judgment and order dated 09.06.2023 passed by the 2nd Additional Sessions Judge, Visavadar in Sessions Case No.01 of 2020, by which the respondent-accused has been acquitted of the charges under Sections 307, 323 and 326 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The said acquittal is on the basis of benefit of doubt. 2. Learned advocate Mr.V.A.Zala appearing for the appellant-original complainant has submitted that while recording the acquittal, the Sessions Court has not taken into consideration the evidence available on the record, particularly recovery of the Shovel (Pavdo) which had the blood stains of the victim and the same was supported by the FSL report which has confirmed the blood stains belonging to the victim’s blood group on the Shovel. Learned advocate submitted that the trial Court has not taken into consideration the medical evidence, wherein the medical officers have deposed that the injury caused on the body of the injured is possible by inflicting a blow of the weapon (Shovel). 2.1 Learned advocate has also submitted that the Court has not taken into consideration that the prosecution was able to establish the motive as there was a dispute pertaining to a land existing between appellant’s family and respondent-accused. Learned advocate submitted that when the accused in the statement under Section 313 of Cr.P.C. has admitted about the existing of the dispute with regard to the land, the motive itself is established. 2.2 Learned advocate has strenuously argued on the point of the seizure of the muddamal article by drawing attention of this Court to the panchnama drawn for the purpose being Exh.21 and submitted that in such panchnama, it is the say of the accused that the weapon (Shovel) which was used in the offense, he would be able to show the location and accordingly, at the time of arrest itself, the Shovel was seized under the panchnama. It is argued that though the panch witnesses of the panchnama Exh.21 have not supported the case of the prosecution and have been declared hostile, yet the Investigating Officer in his deposition has referred to the panchnama and therefore, by the Investigating Officer, the prosecution has established the content of the panchnama and in this regard, has relied upon the decision of the Division Bench of this Court in case of Abdulwahab Abdulmajid Baloch vs. State of Gujarat, reported in, 2007 (0) GUJHC 17225. 2.3 Learned advocate has thereafter submitted that the acquittal is erroneous on the ground that the trial Court has not considered the evidence of the complainant himself, who is the son of the injured only on the ground that there is a discrepancy in giving the description of the assailants in the medical case papers drawn by the private hospital and that drawn by the Government hospital. It is submitted that only because in the Government hospital, name of both the assailants have not given in detail and therefore, the reliability of this witnesses was in question. 3. The court heard the ld advocate in detail after providing him some tiem to prepare himself and also perused the record. By an order dated 01.07.2024, this Court had called for the records and proceedings from the trial Court and accordingly, the records and proceedings are available with the Court. 4. An FIR being C.R.No.I-107 of 2019 came to be filed on 04.11.2019 in connection with which post investigation, charge-sheet came to be filed on 03.12.2019 against the sole accused respondent herein. The case was committed to the Sessions upon due compliance with Section 209 of the Code of Criminal Procedure and ultimately vide Exh.6, charge came to be framed against the respondent to the effect that on 03.11.2019 at 17:00 hours in village sim of Leriya, the father of the complainant had dispute with the respondent with regard to the agricultural boundary and hence, the respondent assaulted with Shovel on the head of one Vitthal Mavji Dobariya (father of the informant) and therefore, charge came to be framed for offense under Sections 307, 323 and 326 of the IPC and Section 135 of the GP Act. The applicant denied the charges and claimed to be tried. 5. The applicant denied the charges and claimed to be tried. 5. The prosecution had examined several witnesses with regard to panchnama executed during the course of investigation, however, the panchwitnesses did not support the case of prosecution. In this regard, the arguments made by learned advocate for the appellant that at the time of arrest of the respondent, which had immediately taken place after the incident, the Shovel was recovered by way of panchnama at Exh.21. By relying upon this panchnama, he had drawn attention of this Court to the relevant portion of the panchnama, wherein the Shovel was recovered at the instance of the respondent. In this panchnama at Exh.21, it is recorded that the accused person shown willingness to produce the Shovel which had used in the offense and therefore, the Shovel was produced, description of which was given in the panchnama. Though it is argued that recovery of the Shovel at the instance of the respondent would connect the accused with the offense, it would be pertinent to observe that PW3- Durlabhbhai Bhikhabhai Viroliya was examined at Exh.26 as a panchwitness, but this witness has not supported the case of prosecution and was declared hostile. The co-panch witness Kanjibhai Narsinhbhai Gediya was examined as PW-4 at Exh.22, he too was declared hostile. Therefore, the Court has taken into consideration the evidence of the Investigating Officer-Shashikant Karabhai Malam as PW-15 at Exh.63. In his deposition, he has referred to execution of the panchnama of arrest executed 05.11.2019 vide Exh.21, but he has not recited the contents of the panchnama and has merely stated in his deposition that a panchnama was executed in presence of two panch witnesses, who put their signatures after having being read over the panchnama to them. 6. Considering the fact that the panch witnesses have declared hostile and the Investigating Officer not having referred to the contents of the panchnama, the said panchnama would not be treated as a evidence to connect the respondent with the offense. 6. Considering the fact that the panch witnesses have declared hostile and the Investigating Officer not having referred to the contents of the panchnama, the said panchnama would not be treated as a evidence to connect the respondent with the offense. In this regard, it would be appropriate to refer to the decisions of the Apex Court in case of Subramanuya v/s. State of Karnataka, reported in, AIR 2022 SC 5110 and in case of Ramanand alias Nandlal Bharti vs. State of Uttar Pradesh, reported in, AIR 2022 SC 5273 , which indicate that the requirement of establishing the panchnama is met with if it is exhibited through the Investigating Officer only if the contents of the panchnama are recited during the deposition of the Investigating Officer as a witness. 7. In view of the aforesaid, the argument of learned advocate for the appellant to connect the respondent with the offense cannot be accepted. 8. The petitioner has though relied upon the decision in case of Abdulwahab Abdulmajid Baloch (supra) in support of his argument by drawing attention of this Court to para-23 to substantiate his argument that if the panchwitness does not support the prosecution version, then the same can be proved by the evidence of the Investigating Officer. The Court may not rely upon the judgment so cited by learned advocate, particularly, as the very judgment has overruled by the Apex Court in its judgment reported in 2009 (11) SCC 625 . The court could have made remarks against the Ld Advocate for citing a Judgemnt which is overruled but refrains from doing so, however, cautioning the Ld Advocate for future. 9. The other argument advanced by learned advocate for the appellant with regard to pointing out the error committed by the Sessions Court in not believing the role attributed to the respondent on the basis of the medical certificate which, according to the Sessions Court did not mention the accurate history of assault being carried out on the injured witness. 9. The other argument advanced by learned advocate for the appellant with regard to pointing out the error committed by the Sessions Court in not believing the role attributed to the respondent on the basis of the medical certificate which, according to the Sessions Court did not mention the accurate history of assault being carried out on the injured witness. In this regard, the Sessions Court has perused Exh.36, which is a injury certificate, where in the history it is recorded that the assault was made by one Maheshbhai Nathabhai Mugalpara i.e. respondent herein and his father Nathabhai and in contradistinction to this the Court has also taken into consideration the medical certificate issued by the Government Medical Officer of Government Hospital of Junagadh, which is at Exh.45, where in the history, it was conveyed that the assault was made by the respondent alone. This history was given by the informant PW12, son of the injured witness. The Court has also not believed the informant, son of the injured witness, who on the basis of inaccurate description made in the history given to the medical officer-Shaileshbhai Vitthalbhai Dobariya. The informant was examined vide Exh.48 as PW-12, wherein he has deposed that there exist a dispute with regard to the agricultural field boundary and on phone he was informed by one Jayantibhai that the respondent had assaulted his father and therefore, he had proceeded to the scene of offense. It is evident that the informant was not an eye-witness and was informed by one Jayantibhai. 10. PW-12 was the person who had taken his father for medical treatment. The record would indicate that firstly he was taken to the Government hospital, which issued the certificate at Exh.45, wherein he was admitted on 03.11.2019 and in the history given by this witness, it is recorded that the assault was made by the respondent. If this certificate at Exh.45 is perused, it is evident that after the injured was treated as an indoor case, he was absconded without there being any discharged from the hospital. This certificate at Exh.45 is placed on record by PW-11-Dr. Laxmiben Hardasbhai Karmul at Exh.44. If this certificate at Exh.45 is perused, it is evident that after the injured was treated as an indoor case, he was absconded without there being any discharged from the hospital. This certificate at Exh.45 is placed on record by PW-11-Dr. Laxmiben Hardasbhai Karmul at Exh.44. The Court may compare this with the injury certificate at Exh.36, which is that of a private hospital produced on record by doctor Mansukbhai Dhirajbhai Sangani, who was examined as PW10 at Exh.35 and this shows admission of the patient on 03.11.2019 at 10:00 PM and therefore, this certificate is a subsequent document to the medical certificate at Exh.45 and in this certificate there is addition of the name of the assailant, wherein the very witness Shaileshbai Vitthalbhai, PW-12 has given history that the assault was carried out by the respondent and his father. This improvement by the witness in the history given to the medical doctors at two separate point of time creates doubt in the credibility of the witness and therefore, the trial Court has discarded the evidence of this witness with regard to the incident as well as motive. 11. With regard to the motive, learned advocate for the appellant argued that the in the statement recorded under Section 313 of the Code of Criminal Procedure, the respondent has admitted in the penultimate question that there was a dispute existing with regard to the agricultural field boundary. In the opinion of the Court, the defense taken by the accused in the Statement under Section 313 cannot be treated as a substantive evidence. In any case, the perusal of the statement under Section 313 would indicate the context in which the respondent has answered the penultimate question to the extent that he is innocent, but on account of the dispute of boundary, he has been falsely implicated in the offense. In that view of the matter, the prosecution has failed to establish even the motive. 12. Perusal of the records and proceedings would indicate that the said Jayantibhai has not been examined as a witness and therefore, there is no witness to the extent of assault by the respondent on the injured witness. 13. The Court also observes that the injured-Vitthalbhai Mavjibhai has not been examined by the prosecution and therefore, virtually there is no eye-witness to the incident. 13. The Court also observes that the injured-Vitthalbhai Mavjibhai has not been examined by the prosecution and therefore, virtually there is no eye-witness to the incident. The reason for not examining the injured eye-witness appears to that during the course of trial, due to natural cause, the said witness had expired. In any case, as there is no evidence coming on record with regard to the assault, but nonexamination of the injured witness cannot help the case of prosecution to presume the assault being carried out by the respondent. 14. The Court has also taken into consideration the submission of learned advocate with regard to the presence of blood stains on the Shovel as is reported by the FSL report at Exh.75, the description of the weapon in the serological report is that of Shovel containing cow dung and in that presence of blood group “A” was found. In this regard, it would be necessary to go back to the panchnama by which the Shovel was seized at Exh.21. The relevant portion of the panchnama which describes the Shovel clearly indicates that no stains were found on the Shovel at the time of seizure with the specific mention that no stains including blood stains were found on the Shovel. The prosecution having failed to explain that when the seizure panchnama did not indicate any blood stains, then in that case, the presence of blood stains in the cow-dung attached to the Shovel is found in the FSL report at Exh.75 needs to be explained by the prosecution. 15. The Court has also taken into consideration serological report at Exh.75 of the clothes which were seized that of the accused person however, the blood stains were not ascertainable and hence also it cannot be said that the presence of the respondent at the scene of offense is to be believed. 16. The Court has perused the impugned judgment and order and in impugned judgment and order, the Sessions Court had assigned cogent reasons in not believing the case of prosecution in absence of any eye-witness or any substantial evidence to involve the respondent in the offense and therefore, recorded acquittal. 17. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. 17. 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 Appellate Court would not disturb the findings of acquittal recorded by the Trial court. 18. From the the reasons assigned hereinabove as also the reasons assigned by the Sessions Court, no case is made out to interfere with the impugned judgment and order. In the result, the appeal fails and is dismissed. The judgment and order dated 09.06.2023 passed by the 2nd Additional Sessions Judge, Visavadar in Sessions Case No.01 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.