JUDGMENT : (A.Y. KOGJE, J.) 1. The present appeal is preferred by the State against the judgment and order of acquittal dated 27.11.1998 passed by the Additional Sessions Judge, Court No.11, City Civil & Sessions Court, Ahmedabad in Session case No.155 of 1998. By the impugned judgment and order, the Sessions Court acquitted the respondent-accused for offences under Sections 302 and 135(1) of Indian Penal Code. 2. It is the case where on 18.08.1997 at about three O’clock in the noon deceased Vinod, son of Laxmansinh Hazarisinh went to his friend Sureshkumar Rajput @ Shiva’s house. Thereafter at about 6-30 in the evening said Shiva and Vijay Manubhai Prajapati brought Vinod in rickshaw in blood stained condition to his house. On inquiry by his father Laxmansinh Vinod informed that Rintu Mishra has stabbed him near Surelia Estate opposite Jain Milan Society in a quarrel while gambling. Thereafter, Vinod was taken to Manekba hospital by said Laxman Hazarisinh. Shiva and Vijay but as his condition was serious, the compounder of the hospital advised them to take Vinod to L.G.Hopsital so he was to L.G. Hospital where said Vinod died during the treatment. 2.1 Charge, Exh.2 came to be framed against the respondent-accused, which is as under:- “On 18/08/97 at around 18/30 hours, on a public road in front of the Jain Mill Society near the Sureliya Estate in Ahmedabad, you, the accused, caused injuries to the complainant Laxmansinh Hajarsinh’s son, Vinodkumar on various parts of his body with the Rampuri knife in your possession. The said injuries were caused by you with the intention of causing death of the deceased, or with the intention of causing such bodily injury as was likely to cause his the death, or with the knowledge that you were likely by such act to cause the death of Vinodkumar or the injuries caused to the deceased were sufficient to cause his death in the ordinary course of nature. Thus, the injuries caused by the accused to the deceased caused his death and thereby, the accused has committed the offence of murder punishable under section 302 of the Indian Penal Code. Thus, the injuries caused by the accused to the deceased caused his death and thereby, the accused has committed the offence of murder punishable under section 302 of the Indian Penal Code. Further, on the aforesaid date, time and place, by holding a deadly weapon like the Rampuri knife in public, the accused breached the notification regarding prohibition to keep arms issued by the Police Commissioner, Ahmedabad and thereby, the accused has committed an offence punishable under section 135(1) of the Bombay Police Act.” 3. Learned APP submitted that it is a case of dying declaration. It is submitted that the Sessions Court has committed an error in not believing the dying declaration holding that it ought to have been supported by cogent medical evidence regarding state of health of the deceased. It is submitted that it is a case where oral dying declaration was given before the complainant, who is father of the deceased and in every case, medical opinion would not be available. 3.1 It is submitted that the Sessions Court has committed an error in not taking into consideration the deposition of PW No.9- Dr.Manesh Tulshidas Kapadia, Exh.27, who was the Medical Officer at Civil Hospital, Ahmedabad. In his deposition, he has clearly stated that the deceased was profusely bleeding when he was taken to him at the hospital and that the cause of death of the deceased was unnatural due to shock and hemorrhage as a result of left lung injury. 3.2 It is submitted that the Sessions Court has also committed a grave error in discarding evidence of PW No.10- Natthelal Dalchand Varma, Exh.29. He is the eyewitness of the offence. He has deposed that the incident took place on 18.08.1997 at about 06;00 or 06;30 in the evening when he was purchasing vegetables. He has deposed that he saw two persons came running from his side and the person running behind other person inflicted two to three knife blows on the person running ahead. 3.3 It is submitted that normally, an injured person would give true account of his injury to his near relative and in the present case, deceased was son of the complainant, PW No.1- Laxmansinh, Exh.15 before whom he gave oral dying declaration. 4. 3.3 It is submitted that normally, an injured person would give true account of his injury to his near relative and in the present case, deceased was son of the complainant, PW No.1- Laxmansinh, Exh.15 before whom he gave oral dying declaration. 4. As against this, learned Advocate for the respondent-accused has supported the judgment of acquittal submitting that considering the deposition of PW No.1-Laxmaisinh, Exh.15, who was the father of the deceased and complainant, there is no medical evidence to show that the deceased was in fit state to give statement and therefore, oral dying declaration cannot be believed. It is submitted that apart from this, there are number of infirmities in the said oral dying declaration. 4.1 It is submitted that the prosecution has heavily relied upon deposition of eyewitness Natthelal Dalchand Varma, PW No.10, Exh.29. However, the said witness, in his cross-examination has categorically stated that he does not know either the deceased or the accused. Moreover, no TI parade was conducted and therefore, version of so called eyewitness becomes very much doubtful. 4.2 It is submitted that PW No.2-Sureshkumar @ Shiva, Exh.17, who is the witness of the incident, first took deceased to his home and from there to LG Hospital in rickshaw. This witness has ultimately not supported the case of prosecution and has turned hostile. 4.2 It is submitted that there are absolutely no medical evidence to establish as to what treatment was given to the deceased after the alleged incident. It is submitted that almost all the important witnesses have turned hostile and have not supported case of prosecution and therefore, the Sessions Court has rightly acquitted the respondent-accused for the alleged offences. 4.3 It is submitted that the prosecution has also not proved the discovery panchnama beyond reasonable doubt as there are two panchnamas, first primary panchnama at the Police Station and thereafter panchnama of recovery of knife, which was also not at the behest of the respondent-accused as is coming out in the deposition of panch witness, PW No.7-Jagatnarayan Dube, Exh.24. 5. Having heard learned Advocates for the parties and having perused documents on record, it appears that to prove the case against the respondents-accused, the prosecution relied upon following oral evidence:- Sr. No. Name of the witness Exh. 5. Having heard learned Advocates for the parties and having perused documents on record, it appears that to prove the case against the respondents-accused, the prosecution relied upon following oral evidence:- Sr. No. Name of the witness Exh. No. 1 Deposition of PW No.1-Laxmansinh Hazarisinh 15 2 Deposition of PW No.2-Sureshkumar @ Shiva Udesinh Rajput 17 3 Deposition of PW No.3-Riteshkumar R.Shukla 18 4 Deposition of PW No.4-Vijaykumar Prajapati 19 5 Deposition of PW No.5-Prashanth Shukla 20 6 Deposition of PW No.6-Amrutbhai Solanki 22 7 Deposition of PW No.7-Jagatnarayan Dube 24 8 Deposition of PW No.8-Jayeshkumar Patel 26 9 Deposition of PW No.9-Dr.Mahesh Kapadia 27 10 Deposition of PW No.10-Natthelal Varma 29 11 Deposition of PW No.11-Bharatsinh Jhala 30 5.1 The prosecution also relied upon following documentary evidence:- Sr. No. Particular Exh. No. 1 Inquest panchnama 7 2 Recovery panchnama of clothes of the deceased 8 3 Recovery panchnama of clothes of the complainant 9 4 Copy of covering letter addressed to FSL 10 5 Receipt given by FSL 11 6 FSL report 12 7 Complaint given by Laxmansinh 16 8 Panchnama of scene of offence 21 9 Recovery panchnama 23 10 Discovery panchnama 25 11 PM note 28 12 Report of register the offence 31 Exh.3 is statement of accused under section 313 of Cr.P.C. where accused has taken a stand that he is falsely charged with the offence and has denied the evidence collected. 6. From perusal of record, it appears that in the present case, the prosecution has mainly relied upon evidence of PW No.1- Laxmansinh, Exh.15, complainant and father of the deceased, PW No.2-Sureshkumar @ Shiva, Exh.17 and PW No.10-Natthelal Dalchand Varma, Exh.29. 6.1 In the deposition of PW No.1-Laxmansinh, Exh.15, complainant and father of the deceased, he has stated that on 18.08.1997, it was “Rakshabandhan” festival and at about 04;00 pm in the afternoon, deceased-Vinod was going out of the house. At that time, he asked deceased as to where he was going, to which deceased replied that he is going to his friend Shiva’s house. Thereafter, at about 06;00 pm in the event, Shiva and Vijay brought deceased-Vinod to the house of the complainant in blood stained condition in a rickshaw. From there, they first took him to a private hospital, but as the private hospital refused to give him treatment, they took him to LG Hospital. Thereafter, at about 06;00 pm in the event, Shiva and Vijay brought deceased-Vinod to the house of the complainant in blood stained condition in a rickshaw. From there, they first took him to a private hospital, but as the private hospital refused to give him treatment, they took him to LG Hospital. In the cross-examination, he has admitted that except regarding beating, other details were given by Shiva. Therefore, he clearly appears to be hearsay witness. 6.2 PW No.2-Sureshkumar @ Shiva, Exh.17 took the deceased to his house after the incident and from there, to LG hospital in rickshaw. However, the said witness has turned hostile. In his cross-examination, he has deposed that it is not true that quarrel took place between the accused and the deceased and that accused had knife in his hand. He has also denied that accused ran away with knife in his hand and that the said witness ran after him to caught him off. He has specifically denied that accused inflicted knife blows on the deceased. 6.3 PW No.10-Natthelal Dalchand Varma, Exh.29. He has deposed that the incident took place on 18.08.1997 at about 06;00 or 06;30 in the evening when he was purchasing vegetables. He has deposed that he saw two persons came running from his side and the person running behind other person inflicted two to three knife blows on the person running ahead. However, the said witness, in his cross-examination has categorically stated that he does not know either the deceased or the accused. Moreover, no TI parade was conducted and therefore, version of so called eyewitness becomes very much doubtful. 6.4 PW No.3-Riteshkumar, Exh.18 has turned hostile. In his cross-examination, he has denied about any quarrel taken place between the accused and deceased and the accused having inflicted knife blows on the deceased. 6.5 PW No.4-Vijaymukar, Exh.19 was examined to prove the dying declaration. However, the said witness has also turned hostile. In his cross-examination, he has denied that he stated before the police that deceased-Vinod informed him that accused had inflicted knife blows on him. 6.6 PW No.5-Parasnath, Exh.20 was examined to prove and panchnama of scene of offence and PW No.6-Amratbhai, Exh.22 was examined to prove the panchnama, Exh.23. However, evidences of these witness do not prove case of prosecution beyond reasonable doubt. 6.6 PW No.5-Parasnath, Exh.20 was examined to prove and panchnama of scene of offence and PW No.6-Amratbhai, Exh.22 was examined to prove the panchnama, Exh.23. However, evidences of these witness do not prove case of prosecution beyond reasonable doubt. 6.7 The perused of the evidence of PW-7 at Exh.24 itself will indicated that in evidence in chief itself this witness deposed that when he was called at the police station there was no activity of writing down the panchnama and only after the accused traced the weapon, the police party returned to the police station and then the panchnama was written where as Exh.25 panchnama is written in 2 para as if the first part is written in the police station before going to the place where the weapon was concealed. This entire exercise of discovery panchnama is against the procedure and therefore cannot be treated as a panchnama under section 27 of Evidence Act. Which can be used for corroboration. 6.8 PW No.8-Jayeshmumar, Exh.26 was examined to prove the panchnama of person of the accused. However, he has turned hostile. 6.9 PW No.9-Dr.Mahesh Kapadia, Exh.27 was the Medical Officer at Civil Hospital, Ahmedabad, who has conducted postmortem of the deceased. In his deposition, he has stated that the cause of death was due to hemorrhage and shock as a result of left lung injury. In the cross-examination, he has stated that there must have been profuse bleeding immediately after the injury. However, there is no evidence with regard to the treatment given to him. Moreover, the prosecution has failed to prove beyond reasonable doubt that the injury was caused by the present respondent-accused. 6.10 PW No.11-Bharatsinh Dhirubha Jhala, Exh.30 was the IO. He has deposed that on 18.08.1997, he was on duty as Senior PI at Amraiwadi Police Station. At that time, PSO Chimanlal Vyas gave him vardhi received from LG Hospital given by constable Manubhai Chhotabhai and he was informed by PSO that on the basis of the said vardhi, PSI Shri Rathod has been sent to investigate the offence. He has further deposed that he received telephonic information from PSI Rathod about serious condition of the deceased. Therefore, it clearly appears that it was PSI Rathod, who was present at the hospital when the deceased was taken to the hospital and not the IO himself. The prosecution has not examined said PSI Rathod. He has further deposed that he received telephonic information from PSI Rathod about serious condition of the deceased. Therefore, it clearly appears that it was PSI Rathod, who was present at the hospital when the deceased was taken to the hospital and not the IO himself. The prosecution has not examined said PSI Rathod. Moreover, IO has also not taken statement of either PSO, Head Constable or the Medical Officer. Therefore, his version cannot be relied upon to convict the respondent-accused. 6.11 The prosecution has relied on the panchnama of discovery of weapon as a corroborating evidence. However Ex.25 is the discovery panchanama exhibited through PW-7 Exh.24. 7. In view of the aforesaid discussion, the Court is of the view that the prosecution has failed to establish the case against the respondent-accused beyond reasonable doubt. Therefore, the Sessions Court has rightly given benefit of doubt in favour of the respondent-accused. The Court also finds that there are no corroborating, cogent and clear cut evidence to connect the respondent-accused with the offence. There are many discrepancies and infirmities in the case of prosecution and hence, the respondent-accused cannot be convicted. 8. 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. 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 Apex Court would not disturb the findings of acquittal recorded by the Trial court. 9. The Court has also perused judgment and order of the Sessions Court and finds that cogent and convincing reasons are assigned by the Sessions Court while acquitting the respondent-accused. 10. In view of the aforesaid discussion, the Court finds no reason to interfere with the impugned judgment and order of acquittal. The appeal is therefore dismissed. Bail bond stands discharged. Records and Proceedings be sent back to the concerned Sessions Court.