JUDGMENT : GITA GOPI, J. 1. The State has challenged the judgment and order of acquittal dated 11.9.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Navsari in Sessions Case no.28 of 2003. The charge was framed under Section 302 read with Section 114 of the INDIAN PENAL CODE , 1860 (IPC). 2. The learned APP has referred to the charge and more specifically, the observation of the learned Judge with that of the evidence of PW10 – Mohanbhai Narayanbhai which as per the learned APP, is vital evidence on record, which clarify the prosecution case. The learned APP has submitted that the learned Trial Court Judge has erred in disbelieving the case of the prosecution, where though there was extra-judicial confession of the accused, the learned Judge was not ready to believe the prosecution case, which was erroneous on the evidence on record. The learned APP has submitted that a political colour has been given by the defence, which actually has no bearing to the facts of the case. The judgment is erroneous and is required to be set aside. 3. The charge which was framed shows that all the three accused in a concert on 7.4.2003 at about 01:00 hrs. at Village Satem, had taken deceased Srinivas along with them, who allegedly was having relation with the daughter of accused no.1 – Budhibhai @ Maganbhai Madhubhai Patel and therefore, accused nos.1 and 2 had beaten him with stick and for accused no.3 – Bhagubhai Bhanabhai Hadpati deceased Srinivas had accosted him in the Garba programme and had given kick and fist blows causing death of the deceased and thus, were charged for the offence punishable under Sections 302 and 114 IPC. 4. The prosecution during the trial had examined about fifteen witnesses and almost about eleven documents were produced on record to prove the case of murder. The learned Trial Court Judge has disbelieved the prosecution case under Section 302 IPC. However, the conviction had followed under Section 325 IPC against all the three accused. 5. Heard Mr. Manan Mehta, learned APP at length, who has referred to the judgment, where he has submitted that though the acquittal is under Sections 302 and 114 IPC, the conviction is followed under Section 325 IPC and has also referred that the benefit of set-off appears to have been given. 5. Heard Mr. Manan Mehta, learned APP at length, who has referred to the judgment, where he has submitted that though the acquittal is under Sections 302 and 114 IPC, the conviction is followed under Section 325 IPC and has also referred that the benefit of set-off appears to have been given. Thus, in view of that fact, the jail remarks was immediately called for and produced on record, which was sent by the Superintendent, Nadiad, District Jail and accordingly, the accused no.3 – Bhagubhai Bhanabhai Hadpati and accused no.1 – Budhibhai @ Maganbhai Madhubhai Patel, both had undergone the sentence under Section 325 IPC and were released from jail on 6.4.2004. 6. Mr. Manan Mehta, learned APP has submitted that the evidence on record refers to the extrajudicial confession of the accused and dying declaration of the deceased. The learned Judge was required to consider the case under Section 302 IPC since the accused had the intention to kill the deceased and the very fact also gets corroborated from the evidence of the complainant himself. Delay in medical treatment would not be fatal to the prosecution case and thus, submitted that in view of the postmortem report and the evidence of the complainant, which is consistent, the acquittal under Section 302 IPC is required to be set aside and conviction is required to be ordered. 7. On perusal of the judgment and the oral testimony of the witnesses, we are of the opinion that the learned Judge has rightly acquitted the accused under the charge of Section 302 IPC and the conviction under Section 325 IPC of all the accused is in accordance to the evidence on record and on proper appreciation of law. 8. The learned Judge has considered the evidence of the complainant to appreciate the evidence of the dying declaration of the injured and extra-judicial confession of the accused. The complainant was examined as PW10 whose complaint is produced on record at Exh.28. The complainant – Mohanbhai Narayanbhai is having a tyre puncture repairing shop and the deceased – Srinivas was his brother. The complainant along with his brother were staying since last eight years at Nagdhara village and were working in the tyre puncture shop. Nagdhara is at a distance of 3 kms. from Satem Village. They are originally from Karnataka. The complainant – Mohanbhai Narayanbhai is having a tyre puncture repairing shop and the deceased – Srinivas was his brother. The complainant along with his brother were staying since last eight years at Nagdhara village and were working in the tyre puncture shop. Nagdhara is at a distance of 3 kms. from Satem Village. They are originally from Karnataka. He stated that since last one and a half years, he came to know that his brother – Srinivas was in love relation with daughter of accused no.1 – Budhibhai @ Maganbhai Madhubhai Patel and twice or thrice, there was quarrel because of that, prior to this incident. The quarrel was between Srinivas and the accused no.1 and his sons. 9. As per the deposition of the complainant – PW10, on 6.4.2003, after closing his shop at 09:30 p.m., he was sleeping. On that night at about 01:30, accused no.1 – Budhibhai @ Maganbhai Madhubhai Patel and Ishvarbhai came to his house. According to the complainant, Budhibhai told him that Srinivas was having love affair with his daughter and therefore, he and his son – Paresh and Bhagubhai Patel had beaten Srinivas and he was lying on the road near the house of Bhikhubhai Shah in Hanuman Faliya. Accused no.1 asked the complainant to bring Srinivas home. Accused no.1 had also asked the complainant to make Srinivas understand and even asked the complainant thereafter to leave the Village; otherwise, they would not leave them alive. 10. The complainant stated that he woke up, Harish, Alpesh and Rakesh and all of them went to bring his brother – Srinivas. They saw that he was unconscious and they brought him home in a tempo. They sprinkled water on his face and as per the complainant, his brother – Srinivas got conscious, they gave him little water and inquired from him, who told the complainant, that Meena’s father – Buidhibhai and his son Paresh and Bhagubhai of the same street and others had beaten him with the stick and had given him kick and fist blows. The complainant asked the injured to go to the hospital, but the injured states that he would go in the morning. When the complainant went in the morning to wake up the injured, he found that he was not speaking and therefore, he on the motorcycle went to call Dr. The complainant asked the injured to go to the hospital, but the injured states that he would go in the morning. When the complainant went in the morning to wake up the injured, he found that he was not speaking and therefore, he on the motorcycle went to call Dr. Nayak who came to their house to medically examine Srinivas. Dr. Nayak had advised him to go to Navsari Civil Hospital. The complainant stated that thereafter, he contacted the Sarpanch – Vipulbhai who had called for Ambulance from Navsari Civil Hospital. He took his brother in the hospital, where his brother was declared dead. In the cross-examination, the defence had tried to bring the fact that prior to the incident, about ten days ago, Srinivas had ran away from the house. He had informed about his brother running away from house to the prominent person of the Village Mukundbhai. He affirmed that Mukundbhai is Ex-Sarpanch of Village Nagdhara. He also affirmed that whenever there would be any quarrel in the Village, they would, at the first, contact Mukundbhai. The witness also stated that he is not knowing the fact whether Budhibhai’s daughter is married and she is living happily . The witness was confronted with the suggestion that Mukundbhai had written the names of three accused on a chit and he took the chit to the Police Station and thereafter, the complaint was filed accordingly. The witness affirmed that as his brother had come home, he had not immediately taken him for hospital for treatment, nor had he given police complaint immediately. The suggestion was put that the complaint was filed at the instance of Mukundbhai. 11. The learned Judge has considered the evidence of the complainant and has found that there was an extra- judicial confession by the accused who had voluntarily stated before the complainant about their act and the learned Judge found the same to be reliable and believable and has also believed the statement made by the deceased – Srinivas before his brother naming the accused and their act. The learned Judge has also considered it as a dying declaration. The complainant was informed that the deceased was beaten by stick, and kick and fist blows and for that reason, he lost his life. The learned Judge examined whether there was any intention to commit murder. The learned Judge has also considered it as a dying declaration. The complainant was informed that the deceased was beaten by stick, and kick and fist blows and for that reason, he lost his life. The learned Judge examined whether there was any intention to commit murder. The record suggested that the deceased was having love affair with accused no.1 – Budhibhai’s daughter and in connection thereto, there were quarrels and on that day, for the same reason, the accused had injured the deceased. That fact of the deceased being injured by the accused was informed by the accused to the complainant. The said fact, which was given by the accused to the complainant, was in a natural course as thereafter only, the complainant could go in search of his brother along with three other persons. The extra-judicial confession, as observed by the learned Judge, is believable on record. Nothing contrary has come to suggest that no such confession was made. The learned Judge has also further noted by appreciating the medical evidence with regard to the knowledge of the accused to consider the case in Part-I and Part-II of Section 304 IPC. The learned Judge, on the basis of the evidence on record, came to the conclusion that there cannot be an assumption regarding the intention and the knowledge of the accused to bring the case under Section 304 IPC. 12. The injury was noted to be on the vertebra T1 of the spinal cord. The spinous process was broken where the fracture was found. The death of the deceased was found to be due to neurogenic shock due to the injury to the spinal cord as noted in the postmortem report. The defence had also raises suspicion to the evidence of Sumanbhai Haribhai at Exh.20 stating that his conduct was unnatural and unbelievable since though he was knowing of the incident, he has not informed any other person. The learned Judge, rejecting the contention, appreciated the evidence that at about 12:00 night, all the accused had brought deceased Srinivas at their home and thereafter, from there, beating him had taken Srinivas at the house of Deputy Sarpanch – Jaydevbhai and thereafter, pacifying them had send them away and in the morning, the deceased died. In that circumstances, Sumanbhai had no opportunity to inform others. The said appreciation of the learned Judge is appropriate. 13. In that circumstances, Sumanbhai had no opportunity to inform others. The said appreciation of the learned Judge is appropriate. 13. Another contention was raised with regard to panchnama of the stick, since the Panchas had not supported the Panchnama. The said contention of not believing Exh.12 Panchnama was not accepted, since the PSI – Jadeja had corroborated the Panchnama. 14. The learned Judge thus concluded the evidence of the witnesses that the extra-judicial confession and the oral dying declaration is required to be believed as nothing was on record to consider that the witnesses were not stating the true facts, nor found any reason for them to give any false evidence and therefore, ultimately, found the offence under Section 325 IPC and ordered all the accused to undergo sentence of one year simple imprisonment and fine of Rs.1,000/- and in default stipulation, to undergone one month simple imprisonment. The benefit of set off was granted under Section 428 of the Code of Criminal Procedure, 1973. 15. In the case of Darshan Singh v. State of Punjab , (2010) 2 SCC 333 , it has been observed as under:- “61. In a case of acquittal, if the trial court's view is a possible or plausible view, then the Appellate Court or the High Court would not be justified in interfering with it. It is the settled legal position that there is presumption of innocence and that presumption is further fortified with the acquittal of the accused by the trial court. The Appellate Court or the High Court would not be justified in reversing the judgment of acquittal unless it comes to a clear conclusion that the judgment of the trial court is utterly perverse and, on the basis of the evidence on record, no other view is plausible or possible than the one taken by the Appellate Court or the High Court.” 16. In the case of Kallu v. State of M.P. , (2006) 10 SCC 313 , the Hon’ble Supreme Court held as under: “While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. In the case of Kallu v. State of M.P. , (2006) 10 SCC 313 , the Hon’ble Supreme Court held as under: “While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.” 17. In view of the principles laid down in the above-referred judgments and on appreciation of the evidence, we are of the considered opinion that the learned Judge has rightly not considered the case under Section 302 IPC, nor any case was found under Section 304 IPC. The conviction under Section 325 IPC with the appropriate sentence is in accordance to the evidence on record. 18. In wake of the above conclusion, the appeal stands dismissed. Record and proceedings be sent back to the concerned Court forthwith.