JUDGMENT : (PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY) 1. Aggrieved by the judgment dated 31/10/2012 of learned 4 th Additional Sessions Judge, Surendrangar, whereby the sole accused in Sessions Case No.34 of 2011 on the file of said court was acquitted of the charges levelled against him for the offence of murder and for screening of the evidence, the State has preferred this appeal assailing the legality and validity of the said judgment of the Sessions Court, Surendranagar. 2. Heard learned Additional Public Prosecutor Ms. Krina Calla for the State and learned counsel Mr.A. B. Gateshaniya for the respondent. 3. The facts of the prosecution case lie in a narrow compass and may be stated as follows: 3.1. The deceased by name Rajubhai@Babli and PW-2 are relatives. The accused is owner of a petrol Bunk. It is stated that when PW-2 approached the accused at his petrol Bunk and requested the accused to provide diesel to his loader vehicle on credit basis, the accused refused to supply diesel to PW-2 on credit basis. PW-2 got enraged and informed about the said fact to the deceased who is his relative. Immediately both, the deceased and PW-2, went on a scooter to question the accused as to why he refused to supply diesel to PW-2 on credit basis. While both of them were going on a scooter, they came across the accused on the way near the bus-stand at about 3:30 p.m. on the fateful day i.e. on 03/02/2011. When both, the deceased and PW-2, questioned the accused as to why he refused to supply diesel to PW-2 on credit basis, a quarrel took place between them. It is stated that immediately the accused has taken out a sword from his scooter on which he came and stabbed the deceased with the said sword on the right side of his stomach. The deceased sustained a stab injury on the right side of his stomach and fell down. PW-2, who has witnessed the incident, became panic and ran away from the scene of offence. It is stated that the local persons, who were doing business at the scene of offence, also witnessed the incident. 3.2. The deceased sustained a stab injury on the right side of his stomach and fell down. PW-2, who has witnessed the incident, became panic and ran away from the scene of offence. It is stated that the local persons, who were doing business at the scene of offence, also witnessed the incident. 3.2. PW-3, who is the cousin brother of the deceased, and PW-5, who are sitting at a distant place near the scene of offence, saw the deceased fell on the ground and they immediately reached the scene of offence and they have taken him to the Gandhi Hospital, Surendranagar on the motor-cycle of PW-3. The doctor, who examined him, declared that he already died. Thereafter, on the information given by PW-5 to the police, an accidental death case was initially registered in this regard on 03/02/2011. While so, PW-1, who is the elder brother of the deceased, inquired about the incident and thereafter he lodged the report with the police on 07/02/2011 stating that the accused stabbed the deceased and killed him. Therefore, the police registered a case against the accused for the offences punishable under Sections-302 and 504 of the INDIAN PENAL CODE . 3.3. The case was investigated and eventually after completion of investigation, a charge-sheet was filed against the accused for the offences punishable under Sections-302, 504, 201 and 205 of the INDIAN PENAL CODE . 4. After complying with the procedural prescriptions of law, the case was committed to the sessions court for trial. Charge for the offence punishable under Sections 302 , 504, 201 and 205 was framed against the accused and it was read over to him. The accused abjured the guilt and claim to be tried. 5. After completion of the trial, the accused was found not guilty for any of the charges levelled against him and he was acquitted of the charge framed against him. 6. Aggrieved thereby, as noticed supra, the State has preferred this appeal assailing the said judgment of acquittal. 7. As can be seen from the evidence on record, the only eye witness to the incident as per the prosecution version is PW-2. 6. Aggrieved thereby, as noticed supra, the State has preferred this appeal assailing the said judgment of acquittal. 7. As can be seen from the evidence on record, the only eye witness to the incident as per the prosecution version is PW-2. Though PW-2 initially stated in his examination-in-chief that when he and the deceased were going on a scooter that they came across the accused near the bus-stop and that, when they questioned the accused for not supplying the diesel on credit basis, an altercation took place and the accused took sword from his scooter and stabbed the deceased on the right side of his stomach, the said evidence given by him is found to be doubtful and not trustworthy from the evidence that he has stated in his cross-examination. Admittedly, PW-2 who ran away from the scene of offence, did not lodge any report with the police immediately stating that the accused stabbed the deceased with the sword and killed him. Surprisingly, he also did not inform about the said fact to any one, much less to the family members of the deceased. If really he has witnessed the accused stabbing the deceased, the natural conduct of any reasonable and prudent man would be to immediately inform about said fact to the family members of the deceased or to the police. Till the police examined him after three days of the offence, he did not disclose about the incident to anyone. This conduct of PW-2 makes his testimony given in his chief- examination doubtful and not trustworthy. Even PW-1, who is the brother of the deceased, who lodged a report with the police on 07/02/2011, did not state in the FIR that PW-2 informed him that the accused stabbed the deceased or that he came to know about the said incident from PW-2. In fact PW-1 did not state anything in his FIR regarding the source of information received by him that he came to know that the accused stabbed the deceased. Further PW-3 and PW-5 who immediately reached the scene of offence and took the deceased to the hospital also did not state that it is the accused who stabbed the deceased with the sword in his stomach and killed him. Further PW-3 and PW-5 who immediately reached the scene of offence and took the deceased to the hospital also did not state that it is the accused who stabbed the deceased with the sword in his stomach and killed him. On the other hand, they have come up with a theory that the deceased met with an accidental death while he was carrying a sword and running and fell down accidentally and sustained a sword injury. Even the doctor, PW-16, who conducted autopsy over the dead body of the deceased, also stated that there is a possibility of the deceased sustaining the injury accidentally while running holding the said sword and dashing against any object. 8. Even as per the version of the prosecution, PW-6, a person who was working in the tea-stall and PW-7, owner of the pan-shop have witnessed the incident that the accused stabbed the deceased. But, they did not support the prosecution case. They did not depose in their evidence that they have witnessed the accused stabbing the deceased with the sword. Therefore, there is no eye witness account or acceptable legal evidence on record to definitely come to any conclusion beyond any reasonable doubt that it is the accused who has stabbed the deceased with the sword and killed him. 9. Further, as can be seen from the record, there are two weapons that are recovered by the Investigation Officer in this case. Article-5, which is a sword, is said to have been recovered at the scene of offence in the presence of the mediators and Article-8 is said to have been recovered at the instance of the accused on the disclosure statement said to have been given by him. This Article-5 contains blood stains, but as per the FSL report, it is not ascertained as to whose blood it was and even the blood group was not ascertained. So, it is clear that the blood of the deceased or the accused is not found on the said sword to connect the said weapon to the crime and to prove that it is the said weapon that was used to stab the deceased. Further, it’s recovery is also not proved to the satisfaction of the court as the mediators also did not support the recovery of the said sword at the scene of offence. Further, it’s recovery is also not proved to the satisfaction of the court as the mediators also did not support the recovery of the said sword at the scene of offence. The other sword which is said to have been recovered at the instance of the accused is not found to be stained with any blood. So, it also cannot be connected to the crime to show that it was the weapon which was used to commit the offence. In fact when two weapons were recovered by the Investigating Officer, one at the scene of offence and one at the instance of the accused, this circumstance itself throws any amount of doubt regarding the actual weapon that was used in commission of the said offence. The prosecution itself is not certain as to which weapon was used in commission of the offence. Therefore, recovery of the said two swords is not of any use to establish the case of the prosecution that the accused used the said weapon in commission of the said offence. 10. It is also relevant to note that initially the police registered the case as an accidental death and three days thereafter they have registered an offence punishable under Section-302 of the INDIAN PENAL CODE . It was registered as an offence punishable under Section-302 of the INDIAN PENAL CODE solely on the basis of the report lodged by PW-1 who is brother of the deceased and who is also working as a Police Officer in the Police Department. As already noticed supra, he did not disclose the source of information as to how he came to know that the deceased was stabbed by accused and killed him in his FIR. So, when two versions are emanating from the record, i.e. one version of accidental death and the other version of homicidal death, the prosecution has to explain with an acceptable legal evidence that it is a clear case of homicidal death and the deceased was stabbed by the accused and was killed by him. The evidence on record is not at all sufficient to establish the said fact. The evidence on record is not at all sufficient to establish the said fact. As discussed supra, the prosecution case is suffering from several fatal legal infirmities and the prosecution has miserably failed to prove with legal evidence and beyond all reasonable doubt that it is the accused and the accused alone who has stabbed the deceased with the sword and killed him. 11. The trial court, after considering the entire gamut of evidence on record and on proper appreciation of the same, arrived at a right conclusion that the evidence of PW-2 who is an eye witness is doubtful and that the prosecution has failed to prove the case to the hilt against the accused beyond all reasonable doubt. 12. Upon considering the said evidence on record and on reappraisal of the same, we are also of the view that the prosecution has failed to prove the guilt of the accused for the charges levelled against him with acceptable legal evidence beyond all reasonable doubt. Therefore, we absolutely see no valid and legal ground warranting interference of this Court with the said judgment of acquittal. 13. It is well settled law that in an appeal against acquittal, unless the findings recorded by the trial court are perverse and the same are based on improper appreciation of evidence and thereby arrived at any erroneous conclusion, the appellate court will not interfere with the said judgment of acquittal and disturb or reverse the findings recorded by the trial court in acquitting the accused. 14. Therefore, the prosecution has failed to make out any strong case warranting interference of this Court in this appeal. 15. Resultantly, the appeal fails and is liable to be dismissed. According the appeal is dismissed. Notice of admission is discharged. Bail bond, shall stand cancelled. Record and proceedings be sent back forthwith to the concerned court.