JUDGMENT : P. M. RAVAL, J. 1. At the outset, learned Additional Public Prosecutor submits report dated 18.12.2025 of the Police Inspector, Manavadar Police Station, stating that except accused No.2 - Amrutlal Jethabhai Jadav and accused No.5 - Shantilal Jethabhai Jadav rest three accused persons namely Jethabhai Danabhai Jadav - accused No.1, Vrajlal Jethabhai Jadav – accuse No.3 and Devshibhai Devrajbhai Parmar – accused No.4 have expired. The said report is taken on record. Accordingly, the present appeal appeal against the original accused Nos.1, 3 and 4 stands abated, and thus, present appeal remains against the original accused Nos. 2 and 5 only. 2. The present appeal is preferred by the State of Gujarat under the provisions of Section 378 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) being aggrieved and dissatisfied of the judgment and order of acquittal for the offence punishable under Sections 147, 148, 149, 302 and 325 of the Indian Penal Code, 1860, (for short “IPC”) and Section 135 of the Bombay Police Act (for short “B.P. Act”), passed by the learned Additional Sessions Judge, Junagadh, dated 15.09.1998, in Sessions Case No.160 of 1995. 3. The facts of the case of the prosecution in nutshell are that, on 16.09.1995, Chhaganbhai Kurjibhai Jadav (injured – victim), his son Niteshbhai (deceased) and alongwith Manjibhai (informant) were going to the farm of Chhaganbhai, and when they reached near village Dhansar, the respondents herein – original accused persons came behind from the bushes and attacked Chhaganbhai and his son Nitesh. The accused persons were armed with Axe, Scythe and Iron Pipes and started beating indiscriminately Chhaganbhai and Nitesh. On crying for help by the Chhaganbhai and Nitesh, the accused persons ran away from the place of offence. Thereafter, both the victims were taken to the hospital by brothers fo Chhaganbhai namely Hirjibhai and Mansukhbhai in the rickshaw of Musabhai Gameti and at that time Keshav Kurji was also present. Thereafter, the informant – Manjibhai lodged complaint with Manavadar Police Station for the offence punishable under Sections 147, 148, 149, 302 and 325 of the IPC read with Section 1365 of the B.P. Act. 3.1. After completion of investigation, charge-sheet came to be filed before the Court of Judicial Magistrate First Class, Manavadar, since the case is triable by the Sessions Court, the same committed before Session Court, Junagadh. 3.1. After completion of investigation, charge-sheet came to be filed before the Court of Judicial Magistrate First Class, Manavadar, since the case is triable by the Sessions Court, the same committed before Session Court, Junagadh. The said case is numbered as Sessions Case No.160 of 1995. Charges came to be framed vide Exhibit 1 and the plea of accused were recorded, and accused persons having denied the charges, prayed for trial. Pursuant to which the prosecution led both documentary as well as oral evidence to bring home the charges. After recording the statement under Section 313 of the Cr.P.C., and according opportunities to the learned advocates for the respective parties, the learned Session Court acquitted the original accused – respondents herein. Hence, the present appeal by the State. 4. Learned Additional Public Prosecutor Mr. Rohan N. Shah for the State would submit that the learned Judge has not properly appreciated the fact that respondents – accused have formed unlawful assembly with clear intention to commit murder of the deceased and assaulted upon deceased Nitesh Chaganbhai with their respective weapons and also injured prosecution witness Chhaganbhai Kurji. The learned trial Judge has also not properly appreciated the deposition of complainant and eye witness of the present case Manji Soma at Exhibit 30, injured prosecution witness Chhagan Kurji at Exhibit 31, eye witness Musabhai Ibrahimbhai at Exhibit 32, eye witness Devraj Nathabhai Karmata at Exhibit 33, eye witness Ishabhai Ibrahimbhai at Exhibit 34, Sulemanbhai Dal, who has taken injured from the place of incident to hospital in rickshaw at Exhibit 35 and erred in acquitting the accused. The evidenceof Dr. Kusumben Palivala who is a medical officer, has clearly stated in her deposition that injuries caused to the deceased was sufficient in ordinary course of nature to cause death of the decease, was not properly appreciated. Learned trial Judge has not properly considered the depositions of prosecution witnesses namely Musa Hasan Dal – PW 6, Devraj Nathubhai Marmata – PW7 and Ishabhai Ibrahimbhai Dal – PW 8 as these three witnesses are independent witnesses and there is no reason to disbelieve their evidence. Learned trial Judge has not properly considered the depositions of prosecution witnesses namely Musa Hasan Dal – PW 6, Devraj Nathubhai Marmata – PW7 and Ishabhai Ibrahimbhai Dal – PW 8 as these three witnesses are independent witnesses and there is no reason to disbelieve their evidence. The learned Judge has erred in holding that there is omissions and contradiction in the depositions fo prosecution witnesses, though the omissions and contradictions are minor in nature and there is no material omissions and contradictions in the evidence of witnesses, under such circumstances, the learned trial Judge ought to have convicted the accused persons for the charges levelled against them. The learned trial Judge has not property appreciated the deposition of Chhagan Kurji who is examined at Exhibit 31, and he has clearly stated in his deposition that accused Shantilal had caught his hands and thereafter, other accused have assaulted with their respective weapons. Learned trial Judge has not properly appreciated the evident of Dr. Rathod, who is examined by prosecution at Exhibit 16, and they have issued certificate at Exhibit 22. Thus, it is argued that the present appeal requires interference at the hands of this Court, and the judgment and order of acquittal passed by the learned trial Judge be quashed and set aside and the accused persons be punished from the charges framed against them. 5. Learned advocate Mr. Rohan Vaghela appearing on behalf of learned advocate Mr. Pravin Gondaliya for the original complainant has also supported the contention raised by the learned Additional Public Prosecutor for the State and has argued to allow the present appeal. 6. Per contra, learned advocate Mr. Param Buch appearing on behalf of learned advocate Mr. Hriday Buch for the respondents herein - original accused persons has filed his written arguments, wherein it has argued that: (A) Dr.Arjun Gorabhai Rathod (P.W 2, Exh.16) had deposed that on 16.09.1995, Hirji Kurji brought Chhagan Kurji to the hospital with injuries sustained in a brawl, and he was discharged on 20.09.1995. On the same date, Shantilal Jethalal was also admitted with injuries from the said brawl. In cross - examination, the witness admitted that Case No., patient name, and date were not recorded in Exh.22 at the time of examination. Though he had noted “inform police” in the case papers, but he did not inform the police. He could not recollect which patient was treated first. In cross - examination, the witness admitted that Case No., patient name, and date were not recorded in Exh.22 at the time of examination. Though he had noted “inform police” in the case papers, but he did not inform the police. He could not recollect which patient was treated first. He stated that statements of both patients were taken post-treatment while they were unconscious, but conceded that no head injury was found on Chhagan Kurji, nor was any instruction given to take him to the O.P.D. He further admitted that unconsciousness of Chhagan was not recorded in Certificate Exh.21, and that all particulars in the case papers were not reflected therein. He had not received summons to produce the papers. At the time of issuing Chhagan’s certificate and case papers, those of Nitesh were not annexed. He accepted that Injuries Nos. 2, 3, 4, and 1.7 were accident-related, and that Injury No.2 of Nitesh lacked proper and identical information. He further admitted that Chhagan regained consciousness at 7:00 P.M., and his statement was recorded at 9:30 P.M. (B) Manjibhai (Informant – Interested witness) (P.W. 4,Exh. 30). 1. The said witness in his cross examination deposed that when he started using the agriculture field of Chhaganbhai. The incident has occurred on the road starting from Bodaka leading to village Piplana. He accepts that if one’s travels from village Bodaka to Piplana, first the agriculture field of Chagganbhai will come. It is only on the day of the incident that they had decided to water the crops. He further states that he is not aware if Kadabhai Kurjibhai was known by another name. He denies that he has not stated in his F.I.R that after the incident he went to Kadabhai and informed about the same. He states that the brother of Chhaganbhai i.e. Hirji Kurji stays in Piplana. He also adds that Hirjibhai is also known as Kadabhai. 2. The house of Kadabhai must be around 1000 - 1200 feet away to the place of incident. That since he has started using the land of Chhaganbhai till the date of the incident he has not meet accused Jethabhai or Shantilal. He states that he has seen them several times while they were going to their agricultural land. Chhaganbhai use to reside at Junagadh since about four to five years from the date of incident. That since he has started using the land of Chhaganbhai till the date of the incident he has not meet accused Jethabhai or Shantilal. He states that he has seen them several times while they were going to their agricultural land. Chhaganbhai use to reside at Junagadh since about four to five years from the date of incident. He is not aware whether Shantilal has registered any complaint against Chhaganbhai. He denies that Chhaganbhai was having any pipe neither was Nitesh carrying any pipe. He has started using the agricultural field of Chhaganbhai before about two to three months from the date of incident. 3. He has not seen Nilesh or Chhaganbhai assaulting anyone. He has not seen accused Shantilal bleeding from head or leg. He did not intervene in the said scuffles. He reached to house of Kadubhai in about five to seven minutes. He states that he had walked from village Piplana to the place of incident. After he reached, fifteen minutes thereafter rickshaw reaches the place of incident. There are three to four people with who’s people through which they shifter both the injured person in the rickshaw and in the process no such blood strains were seen on his clothes. 4. He does not know any Musabhai Husenbhai Dal. He also does not know Devrajbhai Nathabhai Rabari. He states that after the shouts at the place of incident no one was present. Before he raised shouts Chhaganbhai and Niteshbhai raised shouts for help. He also does not know Ishabhai Ibrahimbhai of village Piplana. 5. He states that no talks had taken place to the injures person to Manavadar from the village Piplana. He accepts that there is a hospital in Manavadar and also a Police Station. Vanthali villages falls in between from Piplana to Junagadh and that Police Station and Hospital are also there in Vanthali. He states that they did not take injures person to Vanthali nor had any one of them gone to Vanthali police station. He states that they reached Junagadh hospital at around 10:00 A.M. and police had reached the hospital within 15 to 20 minutes after the injured were admitted. Therefore, owing to the fact that the informant is an interested witness and several irregularities in his deposition, the learned Sessions Court have rightly not believed the testimony of Manjibhai. He states that they reached Junagadh hospital at around 10:00 A.M. and police had reached the hospital within 15 to 20 minutes after the injured were admitted. Therefore, owing to the fact that the informant is an interested witness and several irregularities in his deposition, the learned Sessions Court have rightly not believed the testimony of Manjibhai. (C) Chhaganbhai Kurjibhai Jadav (father of the deceased –Injured Eye Witness) (P.W. 5, Exh. 31). 1. He states in his cross examination that police had recorded his statement in Junagadh hospital at around 10:00 at night. He states that before he reached hospital accused Shantilal was admitted. He further says in para 4 of his cross examination that a day prior to the incident he and Manjibhai had decided how many persons where to go to the field. At the time of incident his son Mukesh was 30 years and other son Ramesh was about 22 years and another son Nitesh was 18 years. A day prior to the incident went to his house in the afternoon thereafter he left and that this witness had not accomplished Manjibhai. He accepts that he has not informs Manjibhai as off when he will come to village Piplana. That he and his son Nitesh had reached at the house of Hirjibhai in the evening. It was already decided as to at what time will they leave for morning after reaching Piplana. He denies that before the occurrence of the incident Jethabhai (accused person) had given any compliant to Dy.S.P and complain in the court against him. He accepts that pendency of Civil Suits between the parties. He denies that Civil Court had passed the order against them and accepts that against the order passed by Manvadar Court they had preferred an appeal before the Junagadh Court. 2. On the day of the incident when they left for their field Manjibhai informed that he is going to take a tobacco packet. He accepts that while walking Manjibhai was not with him. He says that he has not met anyone while on way to village Piplana to the place of incident. He says that they left village Piplana within half an hour after Manjibhai reached their place. 3. He accepts that there is a pipeline in the field of Jethabhai (accused) before the incident. He also accepts that it is an underground pipeline. He says that they left village Piplana within half an hour after Manjibhai reached their place. 3. He accepts that there is a pipeline in the field of Jethabhai (accused) before the incident. He also accepts that it is an underground pipeline. He also accepts that the said pipeline which starts from the well passes through several field including his own field and reached the agriculture field of the accused person. He denies having damaged the said pipeline however he accepts that Jethabhai had given complaint against him for damaging the said pipeline. 4. He accepts that he knows Gokadbhai Tidabhai, Nathabhai Lohabhai and one another person. He is not aware that this person had logged the complaint against him assaulting them. He has stated that when he was travelling to his farm with his son - Niteshbhai and Manjibhai, Jethabhai and others came from the bushes and attacked him. However, on perusal of the Compliant filed there is no mention of this fact by the Informant . This fact first time came in light from the deposition of Chhaganbhai and afterwards, Manjibhai in order to support the case improvised his story in the examination. 5. He states that he was not carrying any weapon on the day of the incident nor his son Nitesh was carrying. He further states that his other son Mukesh was not present nor was having any axe. He accepts that there are two roads from the village to reach his agriculture field. He denies the fact that the incident had occurred at the cross road where the village road meets the road which reaches the temple, however he states that the incident has occurred to twelve to thirteen feet away from going to temple. He states that upon seeing the accused persons he did not tried to run away. He voluntarily says that he was surrounded from all the sides and that he was not having any weapon. Also, his son Nitesh had not tried to run away and at that time he was carrying a belt used for water machine. He accepts that his son was hit by one blow of Axe and another blow of Dhariya and till that time he did not get any injury. The accused Shantilal had caught hold of his hand from the front side. At that time, he does not remember whether Shantilal was holding any pipe. He accepts that his son was hit by one blow of Axe and another blow of Dhariya and till that time he did not get any injury. The accused Shantilal had caught hold of his hand from the front side. At that time, he does not remember whether Shantilal was holding any pipe. He says that when he saw the accused person he was walking on the road and when he saw them for the first time the accused person were 15 feet away from there. He neither went toward the accused nor did he try to go away towards the thon wall. After his son sustain injury and fell down within one minute he also fell down. He accepts that according to him after accused Shantilal caught his hand he was assaulted indiscriminately. He says that he was injured on the hands thereafter he says he did not get any injury on the hands. He denies to the suggestion that he has not stated in his police statement that first his son received a blow on the head thereafter a blow of Dhaiya and thereafter the accused person assaulted both of them indiscriminately. 6. He accepts that he has not stated in his statement that accused – Devsinh Devraj gave a pipe blow on his left hand. He denies the fact till he fell down nobody came to rescue them. He knows Musabhai Hasanbhai and denies the fact that he did not see Manjibhai and Musabhai Hasanbhai and they did not come to their rescue. He does not remember that after intervene whether Manjibhai Musabhai stood there or went away. He states that they were taken in a Chhakdo Rickshaw to the hospital. After living from Piplana in rickshaw towards Junagadh they did not stop anywhere. On the day of the incident neither he nor his son Nitesh gave any injury accused Shantilal. He accepts that there is as complaint registered against him and his son for the very same incident. He denies that he was arrested for the said offence. (D) Musabhai Ibrahim Daal (Independent Eye-Witness- Hostile) (P.W. 6, Exh. 32) was grazing cattle at the time of the incident has turned hostile and have not supported the case of the prosecution and have in turn stated that when he arrived at the place of incident, he saw Shantilal (Accused No. 5) lying on the ground injured. (D) Musabhai Ibrahim Daal (Independent Eye-Witness- Hostile) (P.W. 6, Exh. 32) was grazing cattle at the time of the incident has turned hostile and have not supported the case of the prosecution and have in turn stated that when he arrived at the place of incident, he saw Shantilal (Accused No. 5) lying on the ground injured. In the Additional Sessions Court, Junagadh have also observed in their Order that he has not supported the case of the prosecution and have denied the fact that he has witnessed the Accused persons beating Chhaganbhai and his son Niteshbhai (Deceased). (E) Devrajbhai Nathabhai Karamta (Independent Eye- Witness-Hostile) (P.W. 7, Exh. 33) – is declared Hostile has stated on oath that he was present at the place of incident and has seen Chhaganbhai beating Shantilal (Accused No. 5) and Niteshbhai was not seen at the place of the incident. Therefore, the Eye -witness to the said incident is declared hostile and have not supported the case of the prosecution. (F) Eshabhai Ibrahim Daal (Independent Eye-Witness- Hostile) (P.W. 8, Exh. 34) is declared Hostile and has stated that he was passing by the place of incident at the time when the alleged incident took place. He has further stated that he saw Chhaganbhai beating Shantilal (Accused No. 5) with an iron rod. He has specifically not mentioned the fact that Manjibhai (Informant) was present at the time of incident. (G) Musa Sulemanbhai Daal (Independent Witness Rickshaw Driver-Hostile)- (P.W. 9, Exh 35) is declared Hostile. (H) Devsinhbhai Premjibhai Tank (P.W. Exh.38-Panch) Panch for recovery of clothes of injured witness Chhaganbhai. In his cross examination he accepts that Chhagan Kurji is his friend and he does not remember that when his clothes were taken. He came to meet Chagganbhai to hospital and at that time he was called as Panch. (I) Jivanbhai Naranbhai Tank (P.W.12 Exh.40) Popatbhai Laljibhai Tank (P.W.13 Exh.42) – Panch witness to discovery of weapons and are declared hostile. (J) Mansukhbhai Kurjibhai Jadav-Brother of injured Chhaganbhai Kurjibhai (P.W.14 Exh.43) – He says that on the day of the incident upon hearing of the shouts he ran towards the place of incident where he saw Jetha Dana and other accused persons going in the cart. 1. In cross examination he says that he and his brother are staying separately since about fifteen years. 1. In cross examination he says that he and his brother are staying separately since about fifteen years. He states that he did not help his brother Chhaganbhai for the agriculture work and that he did not used to say about agricultural work. He does not know Manjibhai Samabhai (Complainant). 2. In para 6 of his cross examination, he says that upon hearing the shouts they ran towards the place of the incident and they reached there about five to seven minutes, he along with his brother Hirjibhai who is about 51 years. He accepts that both the injured persons were lying at the cross road where the village roads joints the roads leading to SwaminarayanTemple. They were lying at the distance about two three feet. He states that he went to get rickshaw in Piplana village which took about fifteen to twenty minutes. 3. He says that he along with another person picked up the injured person and put them in the rickshaw. In the process no blood strains were found on the cloth and he is not aware that any blood strain on the clothe of other person and is also not aware that any blood strains were found in the rickshaw. 4. He accepts that till Nitesh passed away and he went to village Piplana, he did not inform anything to the Police. On the next day when he came to Junagadh Hospital at that time Police had recorded his statements. (K) Najbhai Mudabhai (Exh.44) and Hajabhai Sajabhai (Exh.47) are panch of Panchnama of place of incident and are declared Hostile. (L) Hansaben Joshi (Exh.59 -P.S.I) - She states that she was performing her duty as P.S.I. Junagadh City Police Station on 16.09.95 and at that time a list was submitted by P.S.O K.B. Patel to her and that list is marked as 11/1 and annexed as Exh. 60. She states that when she went to the hospital, at that time Chhagan Kurji and Nitesh Chhagan were present along with Manji Soma and at that time she had registered the F.I.R. 1. She stated in her cross examination that on that day head constable Shri M.K.Chauhan was on duty and when she reached Hospital, he was present. She denies of meeting him at the hospital. After receiving the complaint, she did not inquire that the accused persons are present in the said hospital. She stated in her cross examination that on that day head constable Shri M.K.Chauhan was on duty and when she reached Hospital, he was present. She denies of meeting him at the hospital. After receiving the complaint, she did not inquire that the accused persons are present in the said hospital. F.I.R at Exh.61 is in her handwriting. The date and time written on Exh.61 was by P.S.O K.B.Patel. 2. She states that the complainant Manjibhai had not stated in his F.I.R that after the incident he went to inform Kadabhai Kurjibhai in village Piplana. She says that he went to inform Hirjibhai Kurjibhai. (M) Dhirajlal Savjibhai Jote (Exh.62)- He states that he was performing his duty as P.S.O at Manavadar Police Station between 12:00 to 20:00 on 16.06.95. In his cross examination he denies that before he received the complaint from Junagadh, P.S.I -S.K.Patel had already left for investigation. Upon seeing Entry No.18 of Station Diary, he says that on that day at around 2:20 Shri Patel had left for village Piplana. After registering the compliant he had sent Shri Patel to village Piplana for investigation. He accepts that the details in Entry No. 18 were regards in wireless message received from Manavadar Police Station. When he received this wireless message Shi Patel was in village Batva and that he has informed Shri Patel about this wireless message. Upon seeing Entry No.20 of Station Dairy, he denies that when he made Entry No.20, was aware that Mitesh had already passed away. Upon seeing Entry No.19, he says that said note Entry Notes that Nitesh had passed away. He accepts that in Entry No. 20 and 21 which is received in Zero No. in that he has not mentioned the time. As one offence was Under Section 307 of I.P.C it was registered first. (N) Indrasinh Natwarsinh Jadeja (Exh.67, Police Inspector, Manavadar)-He conducts the initial investigation of the present offence as well as the cross case. In his cross examination he accepts that Shantilal was undergoing treatment. He accepts that in cross case they had arrested one Mukesh Chhagan. During the investigation of said offence an Axe as recovered from Mukesh in presence of Panchas. (O) Karsanbhai Bavanjibhai Patel (Exh.69- Police Officer-Junagadh City Police Station) In his cross examination he denies that when he received the complaint of the present offence, complaint of Shantilal was received prior to that. During the investigation of said offence an Axe as recovered from Mukesh in presence of Panchas. (O) Karsanbhai Bavanjibhai Patel (Exh.69- Police Officer-Junagadh City Police Station) In his cross examination he denies that when he received the complaint of the present offence, complaint of Shantilal was received prior to that. Upon seeing the Station Diary, he says that complaint of Shantilal Jethabhai was forwarded to Manavadar by P.S .O Rathod for registration of F.I.R and the time mention was 11:20. (P) Sureshchandra Keshavlal Patel (Exh.78, P.W.-22, I.O – Bantwa) – He states that he was serving as P.S.I Bantwa Police Station on 16.06.95 and was also in charge of Manavadar Police Station. On the alleged incident day, he received information of brawl at Piplana by telephonic medium at around 14:30 by P.S.O. Manavadar. In his cross examination he accepts that through wireless message he was conveyed that the injured persons were in Junagadh. He accepts that he had gone through both the F.I.R when the investigation was handed over to him. He accepts that witness Musa Hasan showed him place of the incident. He accepts that he showed the place which is located on the road from village Piplana to village Bodaka which meets the road going to the temple from Bodaka, that was shown as the place of incident. He denies that blood was found only within 1 inch at the place of the incident. He says that during investigation he had not conducted any Panchnama of the cart. He says that he did not think it fit to disclose the distance in the Panchanam between the place of incident and village Piplana. 1. He further states that he has not met with both the officers who had taken the complaint at Junagadh. He met with the accused Shantilal Jetha at the Junagadh hospital. He does not remember whether the first complaint of the alleged incident was given by Shantilal. He states that without looking into the records he cannot say about whether the first complaint was given by Shantilal at Junagadh Police Station. He accepts that the complaint of Shantilal was taken by the head constable of Junagadh Police Station and on the basis of the complaint an F.I.R was registered by P.S.O Shri Rathod. He denies that he had met Ex. Magistrate on 16 th . He further states that he sent Yadi to the Ex. He accepts that the complaint of Shantilal was taken by the head constable of Junagadh Police Station and on the basis of the complaint an F.I.R was registered by P.S.O Shri Rathod. He denies that he had met Ex. Magistrate on 16 th . He further states that he sent Yadi to the Ex. Magistrate on 18 th . Thereafter says that Yadi was sent to obtain copy of Dying Declaration. 2. He accepts that he himself was conducting the investigation of Cr. No. 15/95 and 66/95. He has not taken blood samples of four accused person in connection with above investigation. He states that during his investigation it was found that the alleged incident took place because of the issue involved was regard to the land dispute. He says that he has not obtained any document in respect of the said land dispute. He further accepts that those documents were available from Court record. 3. He accepts that Panchnam of the Rickshaw was not conducted in which the injured person were taken. He accepts that the statement of Suleman was taken at Piplana village. 4. He says that Chhagan Kurji had not stated in his statement that Nitesh was assaulted with axe on his ahead and with Dhariya and thereafter all accused started assaulting him and his son. He says that he has recorded statement of Mansukh Kurji Jadav at village Piplana. He says that he has not recorded the statement of Head Constable R.J.Barot and M.K Chauhan and Shri Rathod. (Q) It is submitted that as far as clothe of injured witness Chhaganbhai is concerned the FSL Report (Exh.55, Pg. No. 110) and serological reporting at Exh.56, reflexes the blood group as “A, B”, which blood group is not found in any of the weapons. 6.1. Thus, it is argued by the learned advocate for the accused persons that prosecution case suffers from material inconsistencies and omission. 6.2. That, the medical evidence itself does not conclusively support the prosecution version. 6.3. That, medical opinion creates a clear possibility that the injuries could be accidental in nature and does not corroborate with the alleged occurrence due to which the death was occurred. 6.4. Even the evidence of medical officer – PW 2 who is treating doctor does not support the case of prosecution. 6.3. That, medical opinion creates a clear possibility that the injuries could be accidental in nature and does not corroborate with the alleged occurrence due to which the death was occurred. 6.4. Even the evidence of medical officer – PW 2 who is treating doctor does not support the case of prosecution. His deposition itself reveals procedural lapses, including non-recording of basis particulars such as case number, patient name and date at the time of examination, failure to inform the police despite of noting in the case papers “inform police” and inability to recollect the sequence of treatment of injured persons. PW 2 also admitted that unconsciousness of Chhagan Kurji was not recorded in the injury certificate. That, no head injury was found to the Chhagan Kurji, and that several accident-related injuries were present in the body. The absence of proper documentation, contradictions regarding unconsciousness, and incomplete medical records seriously undermine the reliability of the prosecution’s case. 6.5. That, the trial Court has scrupulously tested the depositions of the interested witnesses and has formed that they are completely unreliable and are suppressing the genesis of the alleged incident, keeping in view that all the independent eye witnesses are not supported the case of prosecution, who are three in number. 6.6. That, the version of the injured witness also does not corroborate from the evidence on record and thereby the trial Court has committed no error in acquitting the present accused persons. 6.7. That, the testimony of the informant Manjibhai – PW 4 who is an interested witness is fully contradiction and improbabilities. His version regarding the place of incident, presence of independent witnesses, conduct after the incident, and delay in approaching the police does not report confidence. Despite availability of nearer hospitals and police stations from the place of occurrence, the injured were taken to Junagadh without any plausible explaination. 6.8. That, the deposition of Chhaganbhai – PW 5, who is injured eye witness and father of the deceased suffers from serious inconsistencies. Crucial facts which he deposed first time before the Court, such as the accused emerging behind bushes and the precise sequence of assault, are not emerged from the FIR which cause to the root of the case. His statement before police appears at variance with he deposition before the Court which seems to be subsequent improvements. Crucial facts which he deposed first time before the Court, such as the accused emerging behind bushes and the precise sequence of assault, are not emerged from the FIR which cause to the root of the case. His statement before police appears at variance with he deposition before the Court which seems to be subsequent improvements. The admission of Chhaganbhai regarding existing civil disputes, prior complaints about damaged pipeline, pendency of cross complaints, and uncertainty about weapons and injuries create a serious doubts of the case of the prosecution, they are strong possibility of false implication of all male members of family of accused person due to prior enmity. 6.9. That, all the independent witnesses - PWs. 6, 7, 8 and 9 have turned hostile. The investigation itself suffers very serious lapses. Crucial Panchnamas relating to the scene of offence, recovery of weapons, rickshaw used for transport of injured, and evidence with regard to blood have not carried out conducted properly more so the witnesses have turned hostile and have not supported the Panchanamas. The investigating officer having admitted to having not collected the blood samples of the accused, not seizing or examining the rickshaw by which the injured were taken to hospital, not collecting documentary evidence relating to the land dispute which was admittedly the root cause of the incident, hence, acquitting accused by the trial Court requires no interference at the hands of this Court. 6.10. That, it is admitted fact that the incident is of the year 1995 and there were cross-cases, and both the sides all the accused persons were acquitted, however, it is only against the accused persons - present respondents that the State has preferred appeal. 6.11. That out of 5 accused persons only 2 surviving and rest 3 were passed away. 6.12. That, when two plausible views are possible and the plausible view taken by the trail Court is neither perverse nor against the evidence on record, and only another view is plausible the same cannot be overturned in appeal jurisdiction. 6.13. That, the existence of cross-case, wherein injuries to accused Shantilal are admitted and Axe alleged to have been recovered from Mukesh Chhagan, where the sited witnesses in chargesheet have not been examined and that the entire geneses of the incident is suppressed. 6.13. That, the existence of cross-case, wherein injuries to accused Shantilal are admitted and Axe alleged to have been recovered from Mukesh Chhagan, where the sited witnesses in chargesheet have not been examined and that the entire geneses of the incident is suppressed. That, in the cross complaint, the present complainant side is arrayed as an accused, the injuries to the present accused person in not explained by the prosecution. With the abovestated reasons and overall facts and circumstances of the case, the learned advocate argued to reject the present criminal appeal. 7. Heard the learned advocates for the respective parties. This Court has gone through the record and proceedings of the case, memo of the appeal and arguments by the learned advocates for the respective parties. 8. With reference to the principles governing to exercise of appellate jurisdiction by preferring appeal under Section 378 of the Cr.P.C., it would be apt to refer the judgment in the case of H. D. Sundara versus State of Karnataka reported in (2023) 9 SCC 581 wherein at paragraph 7, the Hon’ble Apex Court held that: “7. ….. The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: (a) The acquittal of the accused further strengthens the presumption of innocence; (b) The Appellate Court, while hearing an appeal against acquittal, is entitled to re -appreciate the oral and documentary evidence; (c) The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record ; (d) If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and (e) The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 9. Tested on the aforestated principles, if the evidence of the injured witness Chhaganbhai, evidence of the complainant who is alleged eye witness namely Manjibhai and that of Mansukhbhai Kurjibhai Jadav who is also alleged to have seen the incident, it clearly transpires that Mansukhbhai Kurjibhai Jadav - PW 14 examined vide Exhibit 43 and Manjibhai Somabhai examined as PW 4 vide Exhibit 30 who is complainant, that they have not seen the alleged offence. The reasons in nutshell as it would be evidence from their deposition as well as cross examination is that: 9.1. The factum of the present accused persons hiding behind the bushes and suddenly appearing from the bushes is not stated in the FIR. 9.2. The factum of the complainant visiting village Piplana from village Bodaka for what purpose, is not coming on record since the injured witness Chhaganbhai Kurjibhai in his cross exaggeration admitted that on the prior day in the afternoon before the incident took place between 01 to 02 pm., the complainant Manjibhai had come to Junagadh at his residence, and thereafter he run away, coupled with the fact that he did not inform Manji that when he is coming to Piplana. Thus, the factum of the injured Chhaganbhai visiting Piplana at what time was not known to Manjibhai. Under such circumstances, the factum of Manjibhai visiting village Piplana from village Bodaka had no reason to travel. 9.3. Chhaganbhai as well as Mansukhbhai in their depositions, more particularly in examination in chief state that prior to date of incident, Chhaganbhai as well as deceased Nitesh both had visited village Piplana and on the date of incident in the morning Chhaganbhai, Nitesh and Manji went to the field of Chhaganbhai. However, keeping the deposition of the Chhaganbhai juxtapose to deposition of Manjibhai after leaving their house in the morning, Manjibhai had gone to consume tobacco, and Chhaganbhai and Nitesh have traveled further to reach their field, and near village Dhansar where Chhaganbhai and Nitesh reached, at that time as per the admission by Manjibhai in his cross examination, he was standing away at the distance of 100 to 150 feet to the place of incident and at that time he saw bullock cart which was standing, however, no such bullock cart was found as per deposition of Chhaganbhai. 9.4. 9.4. As per the say of Manjibhai when Chhaganbhai and Nitesh reached near village Dhansar at that time accused Jethabhai, his son Vaju, Shani and Amrut, and Devshi Devraj came behind the bushes and started inflicting injuries to Chhaganbhai and Nitesh. However, on perusal of complaint at Exhibit 11, the accused hiding behind the bushes and suddenly came from behind the bushes is not stated. Thus, prosecution has tried to make out the case that with pre- determination and by the forming of unlawful assembly to commit the offence, where hiding behind the bushes with a common object. 9.5. That as per the say of the complainant that he was standing on distance of 100 to 150 feet from the place of incident, however, does not state in his FIR with regard to role and details of weapons being held by the accused persons in their hands. Though, FIR is not required to be an encyclopedia, however, are missing on the very basic aspects of the alleged offence having wrote from the distance of 100 to 150 feet have not intervened in the alleged offence. However, stating in detailed deposition for the first time with regard to hiding of accused persons behind the bushes in his deposition, however, does not say in detail, the role attributed qua holding weapons in hands and or inflicting injuries to the deceased as well as injured persons. 9.6. This is also relevant keeping in view to the fact that Chhaganbhai has given details with regard to what role was attributed in inflicting injuries or holding him, however, Manjibhai who alleged to have seen this offence at the distance of 100 to 150 feet is silent on the material aspects and merely states that all have started beating indiscriminately. 9.7. It is also relevant to note that all the three eye witnesses who are independent and other the related witnesses have not supported the case of the prosecution, but on the contrary, have supported the case of the accused persons and thus the geneses of the incident seems to have been suppressed by the prosecution, more particularly, the injuries on the accused persons and factum of the cross complaint as well as the treatment taken by the present accused persons prior in point of time, create serious dent in the theory of the prosecution. 10. 10. On perusal of the deposition of police witness Hansaben Joshi – PSI who has lodged the complaint, reached the hospital as she received written yaadi from police PSO namely Mr. K. B. Patel where she found Chhaganbhai Kurji and Nitesh Chhagan unconscious. This witness also admits in her cross examination that when she reached hospital at that time duty head constable Mr. M. K. Chauhan was present. Tested this deposition with that of deposition of Manjibhai, Manjibhai denies the factum of police being present when they reached hospital. The trial Judge has given cogent and convincing reasons for not believing the complainant and without discussing in detailed and further considering the inconsistency in the deposition which creates serious doubt in the case of the prosecution and thus this Court concurs with the findings with regard to not believing the complainant as an eye witness. 11. As far as the deposition of Mansukhbhai Kurjibhai Jadav who is brother of the Chhaganbhai examined vide Exhibit 43 at PW 14, from the bare perusal of the examination in chief, it does not repose confidence to have seen the alleged incident, and under the circumstances, the reasoning of not believing such eye witness recorded by the trial Court does not suffer from any error. 12. What remains next is only the deposition of the injured witness i.e. the father of the deceased namely Chhaganbhai Kurjibhai Jadav who has been examined as PW 5 at Exhibit 31. The reasons for disbelieving this witnesses in nutshell is recorded as follows: (a) The presence of Manjibhai is not believed, however, this witness tried to establish his presence from his deposition. (b) The factum of bullock cart seen by Manjibhai is not deposed by the present injured witness and also denied the said factum in his cross examination. (c) Chhaganbhai in his deposition states that he as well as his son Nitesh both were going towards village Dhansar, and at that time Jetha Dana, Vaju Jetha, Shanti Jetha, Amrut Jetha and Devshi Devraj have standing with weapons. (c) Chhaganbhai in his deposition states that he as well as his son Nitesh both were going towards village Dhansar, and at that time Jetha Dana, Vaju Jetha, Shanti Jetha, Amrut Jetha and Devshi Devraj have standing with weapons. Jetha was holding Axe in his hands, Vaju Dana was holding Scythe in his hands and rest of three were holding Iron Pipes in their hands, and before he could think further all the five persons surrounded him and Jetha Dana inflicted on the head of Nitesh with Axe, Vaju Jetha inflicted with Scythe on the left hand of Nitesh, and thereafter Jetha Dana, Amrut Jetha and Vaju Jetha started inflicting injuries to his son Nitesh. If this deposition is considered, keeping in view the medical evidence as state by the Dr. Arjunbhai Rathod – PW 2 that out of the four injuries except of the one which was found on the head were not possible by any sharp weapon, however, as stated by Chhaganbhai accused Vaju Jetha has inflicted injury on the left hand of the deceased Nitesh with Scythe, however, no such injury is found, even from the postmortem report no injury was found at the left hand. Injury by Axe on the head is also doubtful, since the depressed facture on the head was also found. When the treating doctor has not deposed as to how the injury on the head was possible, the doctor who had performed postmortem having found stich-wood on the head could not have opined with regards to the injury on head inflicted on the deceased. When the treating doctor has not deposed as to how the injury on the head was possible, the doctor who had performed postmortem having found stich-wood on the head could not have opined with regards to the injury on head inflicted on the deceased. And thus, there seems to be variance in the opinion of the treating doctor as well as the doctor who has performed postmortem, however, even if these inconsistencies are kept aside for the moment, the factum of cross complaints between the accused persons and complainant party, prior enmity and litigation with regard to the “Well” and non explanation of the injuries on the accused person, lodging the complaint first by the accused however registered it at a later stage, the accused persons having reached to doctor prior in point of time, independent witnesses not supporting the case of the prosecution however supported the case of the accused person, disbelieving the presence of the complainant at the place of the offence for the reasons stated hereinabove, and also the presence of Manshukhbhai – brother of Chhaganbhai, being unbelievable create serious doubt on the case of the prosecution. 13. It is also required to be noted that dying declaration of the Chhaganbhai Kurji who survived, is not placed on record, which can be treated as statement under Section 161 of the Cr.P.C., nor copy has been provided to the accused persons. It is also the settled principle of law that merely because the eye witnesses who have relatives, their deposition cannot be discarded, however, a close scrutiny is required on relying upon such witnesses, more particularly, when there is previous enmity between the parties, it is more incumbent upon the trial Court to closely scrutinies the deposition of the witnesses which has been done by the trial Court in the present case, and when two plausible views are possible, this Court cannot replace its own view since after reappreciating the entire oral as well as documentary evidence, it cannot be said that the view taken by the trial Court is erroneous. From the reading of the entire evidence on record it cannot be said that the accused persons are guilty of the offence and no other conclusion is possible, the reasons recorded by the trial Court are in consonance with the principle governing the criminal law, more particularly, examination of the close relatives, non explanation of injuries though may be not serious, suppression of geneses of the incident, enmity between the parties, nature of injuries as stated by Chhaganbhai in his deposition and tested juxtapose to the depositions of two doctors clearly seems to have created the serious doubt of the case of prosecution. 14. Under such circumstances, it cannot be said that the view taken by the trial Court is erroneous, without considering oral as well as documentary evidence on record. In view of the same, no interference is called at the hands of this Court in the present appeal. Hence, the present appeal against the accused Nos. 2 and 5 stands rejected. Bail bond, if any stands cancelled, surety stands discharged, R&P to be sent back to the trial Court forthwith.