27.cri.appeal.434.2017.Judgment.odt (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPEAL NO.434 OF 2017 Imdad Hussain Gulam Hussain, Aged about 69 Years, Occupation : Retired, R/o. Nababpura, Ner, Taluka Ner, District – Yavatmal. .... APPELLANT (Ori. informant/victim) // VERSUS // 1. State of Maharashtra, through Police Station Officer, Ner, Taluka Ner, District Yavatmal. 2. Sk. Shammi Sk. Mannu, Aged about 71 Years, 3. Mohd. Nasim Mohd. Hanif, Aged about 61 Years, 4. Amjadkhan Abrarakhan, Aged about 34 Years, 5. Abrarakhan Rahemankhan, Aged about 71 Years, 6. Mohd. Rafique Sk. Mannu, Aged about 49 years, 7. Shadatkhan Abrarkhan, Aged about 35 Years, 8. Mohsinkhan Murtuzakhan, Aged about 36 Years, 9. Mohd. Shakir Mohd. Shammi, Aged about 36 years, 10. Sabirkhan Wahedkhan Pathan, Aged about 37 Years, 2026:BHC-NAG:12111-DB 27.cri.appeal.434.2017.Judgment.odt (2) 11. Sk. Wasim @ Chinya Sk. Bahodin, Aged about 35 Years, 12. Jalimkhan @ Jalya Wahedkhan Pathan, Aged about 35 Years, 13. Aniskhan Tayyabkhan Pathan, Aged about 36 Years, 14. Ayyubkhan Tayyabkhan Pathan, Age about 55 years, 15. Ismailkhan Abrarakhan, Aged about 43 Years, 16. Yusuf Khan Amrullakhan, Aged about 45 Years, 17. Sk. Nasir Mohd. Shammi, Aged about 33 Years, 18. Abdul Hamid @ Dablya Ab. Majid, Aged about 48 Years, All the accused Nos. 2 to 18 are the R/o. Ner Parsupant Mohalla, Nababpura, Taluka Ner, District Yavatmal. .... RESPONDENTS (Ori accused) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms. Radha Mishra, Advocate for appellant. Mr. V. A. Thakare, APP for respondent No.1/State. Mr. Abdul Subhan, Advocate for respondent Nos.2 to 18. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : URMILA JOSHI-PHALKE AND RAJ D. WAKODE, JJ. RESERVED ON : 28.08.2026 PRONOUNCED ON : 10.09.2026 JUDGMENT : [Per : URMILA JOSHI-PHALKE, J.] 1. The appellant - original complainant challenges the judgment and order of acquittal in Sessions Trial No.103/2008 27.cri.appeal.434.2017.Judgment.odt (3) dated 06.04.2017 by the learned Additional Sessions Judge, Yavatmal. 2. Brief facts of the prosecution case are as under: On 17.10.2007 at 8.45 p.m., when the informant Imdad Husain along with his wife, daughter Rakshanda and granddaughter Alvira were at home, the respondents, who are the original accused formed unlawful assembly and in furtherance of common object that assembly came in front of the house of the informant holding weapons like iron pipes, sticks and sword in their hands and caused the destruction to the vehicles in front of the house of the informant and also to the household articles. The informant was assaulted by the accused Sk. Shafique and Amjadkhan, he avoided the blow, however, he received the blow on his right eyebrow and sustained injury. By hearing their commotion, prosecution witness Roshankhan rushed to the spot of incident, but he was also assaulted by means of sword and pipes on his head. Due to which, he sustained grievous injuries. The alleged incident has occurred as initially on 21.08.2007 when the granddaughter of the informant Alvira was proceeding to school. The accused Amjadkhan and Mohsinkhan teased her, therefore, the informant has lodged a report against the accused persons. 27.cri.appeal.434.2017.Judgment.odt (4) 3. On the basis of the said report, police have registered the crime. After completion of the formality of the investigation, the chargesheet came to be filed. The learned Additional Sessions Judge framed the charge vide Exh.56. The accused pleaded not guilty and claimed to be tried. In support of the prosecution case, prosecution has examined in all 14 witnesses, which are as follows: (i) PW-1 Abdul Rub Abdul Nabi Exh.93 Eyewitness. (ii) PW-2 Afsarkhan Hashmatulla Khan Exh.94 Panch on seizure of stick, iron pipes at the instance of the accused persons. (iii) PW-3 Sayyed Shakil Sayyed Jabbar Exh.96 Panch on memorandum statement of accused Amjadkhan. (iv) PW-4 Imrankhan Amanullakhan Exh.97 Panch on seizure of weapons. (v) PW-5 Sayyed Akil Sayyed Issa Exh.100 Panch on seizure of weapons. (vi) PW-6 Imdad Husain Gulam Husain Exh.113 Injured eyewitness and the informant. (vii) PW-7 Sheikh Mannu Neyazoddin Exh.138 Panch on seizure of shirt of PW-8 Roshankhan. (viii) PW-8 Roshankhan Vilayatkhan Exh.144 Injured eyewitness. 27.cri.appeal.434.2017.Judgment.odt (5) (ix) PW-9 Ahtesham Husain Imdad Husain Exh.151 Eyewitness (x) PW-10 Sheikh Arif Sheikh Rasul Exh.166 Panch on memorandum statement of accused Amjadkhan. (xi) PW-11 Balu Bapurao Mendhe Exh.172 Police Constable Ner Police Station. (xii) PW-12 Rakshanda Sanobar Nasrullahkhan Exh.175 Eyewitness. (xiii) PW-13 Dr. Ashok Bhausaheb Najan Exh.183 Medical Officer (xiv) PW-14 Dinkar Sampatrao Bhanuse Exh.186 Investigating Officer. 4. Besides oral evidence, the prosecution placed reliance on oral Report Exh. 114, FIR 115, Map of the spot Exh. 134, Seizure Memo Exh. 139, Recovery Panchanama Exh.167, requisition to the Medical Officer to examine Imdad Husain Gulam Husain Exh.173, Medical Certificate of injured Imdad Husain Exh.185, requisition to Medical Officer to examine Roshankhan Exh.174, Medical Certificate of Roshankhan Exh.184, Spot Panchnama Exh. 187, Arrest Panchanama Exhs.188 to 206, Seizure Memo Exhs.207 to 214, Memorandum Statement of accused Amjadkhan Exh.215, Recovery Panchanama Exh.216, Seizure Memo Exh.220, requisition to CA 27.cri.appeal.434.2017.Judgment.odt (6) Exh.221, Duty Pass to Police Constable Gajanan Kshirsagar Exh.222, Notification under Section 37(1)(3) of Bombay Police Act Exh.225, CA report Exhs.227 and 228. 5. After the incriminating evidence is put to the accused by recording their statements under Section 313 of the Code of Criminal Procedure and on appreciation their evidence, learned trial Court held that prosecution could not prove the charges against the accused and thereby acquitted the accused persons. 6. Being aggrieved and dissatisfied with the same, the present appeal is preferred. 7. Heard learned counsel Ms. Radha Mishra for the appellant. She vehemently submitted that despite there is consistent evidence of eyewitnesses PW-6 Imdad Husain, PW-8 Roshankhan, PW-9 Ahtesham Husain and PW-12 Rakshanda Nasrullahkhan. The trial Court has disbelieved this evidence and acquitted the accused. She submitted that not only the direct evidence, but the medical evidence and the circumstantial evidence in the nature of blood stained clothes of the accused persons were seized, weapons were also seized at their instance, but the trial Court erroneously ignored the said evidence and acquitted the accused. She has taken us through the entire evidence and submitted that the prosecution though proved the 27.cri.appeal.434.2017.Judgment.odt (7) fact of assault on the PW-6 Imdad Husain and PW-8 Roshankhan, the appreciation of the evidence by the trial Court shows that the evidence of both these witnesses was disbelieved without assigning any reason. Thus, considering the nature of the evidence of the eyewitnesses corroborated by the medical evidence, the prosecution has established the charge, hence, the accused persons deserve to be convicted. 8. Learned APP also supported the said contention. 9. Per contra, learned counsel for the respondent Nos.2 to 18/accused Mr. Abdul Subhan taken us through the entire evidence and submitted that the evidence of eyewitnesses is not at all consistent. During trial, it revealed that PW-9 Ahtesham Husain was not the eyewitness of the incident. The evidence of PW-8 Roshankhan shows that he was assaulted outside the house of the complainant. Said Roshankhan nowhere stated that when he had been in the house of the complainant to intervene the quarrel, at the relevant time, he was assaulted. The evidence of PW-12 Rakshanda Nasrullahkhan and PW-6 Imdad Husain is also not consistent or corroborative as far as the alleged incident is concerned. He submitted that the chain of custody of the articles after its seizure was also not established. Thus, there is no evidence on record to show that from the date of seizure till it was forwarded to CA, the articles were kept in a sealed condition 27.cri.appeal.434.2017.Judgment.odt (8) and there was no possibility of tampering of the said evidence. Moreover, there is a delay in forwarding the muddemal to CA for which no explanation is put forth. Despite the alleged incident has taken place in a residential locality, no independent witness is examined by the prosecution. For all above these grounds, the trial Court has acquitted the accused persons. As far as the appeal against acquittal is concerned, the law is settled, therefore, no interference is called for. 10. After hearing both sides and on going through the entire evidence, it has to be ascertained whether the complainant has made out a case that the judgment of the trial Court is erroneous, perverse by ignoring the material evidence. 11. Before appreciating the evidence and entering into the merits of the appeal, it is necessary to consider the law regarding the appeal against acquittal. It is well settled that while exercising the appellate powers, especially while dealing with appeals against acquittal, the cardinal principle to be kept in mind is that there is a presumption of innocence in favour of accused, unless the accused is proved to be guilty. The presumption continues and finally culminates into a fact that when case ends in acquittal. The possibility of two views in criminal cases is not an extraordinary phenomenon while considering appeals against acquittal. A fact cannot be lost sight 27.cri.appeal.434.2017.Judgment.odt (9) of the same. The trial court has appreciated the entire evidence and reversal of the order of acquittal is not to be based on mere existence of different views or mere difference of opinion. Normally, while exercising the appellate jurisdiction, it is the duty of the appellate court to see whether decision is correct or incorrect on law or facts. While dealing with appeals against acquittal, the court cannot examine impugned judgment only to find out whether view taken by the trial Court is correct or incorrect. After re-appreciating the oral and documentary evidence, the appellate court must decide whether trial court’s view was possible view. The appellate court cannot overturn acquittal only on the ground that after re-appreciating the evidence other view is possible. 12. No doubt, an order of acquittal is open to appeal and there is no quarrel about it. It is also beyond doubt that in exercise of the appellate powers, there is no inhibition of the High Court to re-appreciate or re-visit the evidence on record. However, the powers of this Court to re-appreciate the evidence is qualified power especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the 27.cri.appeal.434.2017.Judgment.odt (10) trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity. 13. The Hon’ble Apex Court in the case of Girja Prasad (Dead) By Lrs. v. State of M.P., reported in 2007 (7) SCC 625, wherein after considering the various decisions, certain general principles regarding powers of the appellate court in dealing with appeal against order of acquittal are laid down, which are as follows: “From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasize the reluctance of an appellate Court to interfere with acquittal than to 27.cri.appeal.434.2017.Judgment.odt (11) curtail the power of the Court to review the evidence and to come to its own conclusion; (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court, and (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 14. In view of the above well settled law, the evidence in the present appeal requires to be appreciated. As per the allegations, the respondent Nos.2 to 18 formed an unlawful assembly and in furtherance of common object of that assembly, attempted to commit murder of PW-6 Imdad Husain Gulam Husain and PW-8 Roshankhan. To prove the charge against the respondent Nos.2 to 18, prosecution mainly placed reliance on the evidence of PW-6 Imdad Husain Gulam Husain, who is examined vide Exh.113. On perusal of evidence of PW-6 Imdad Husain shows that prior to this incident on 21.08.2007 when his granddaughter Alvira was proceeding to the school, the accused No.4 Amjadkhan Abrarkhan and accused No.8 Mohsinkhan Murtuzakhan teased her and, therefore, a report was lodged against both the accused. It is further alleged that the accused 27.cri.appeal.434.2017.Judgment.odt (12) Abrarkhan was insisted him to settle the matter amicably or to face the consequences. On 17.10.2007 at about 8.45 p.m., when he was in the house, all these accused persons by holding weapons in their hands came in front of his house and caused damage to the door and windows of the house. Some of the accused entered in his house from the rear side of the wall and assaulted him as well as caused damage to the household articles. He was assaulted by accused No.4 Amjadkhan Abrarkhan by giving blow of sword to his throat, but he leaned towards back side and, therefore, the sword hit on his forehead and he sustained injury near the right eyebrow. He further deposed that after hearing the commotion, his relative PW-8 Roshankhan came in the house to rescue him. At the relevant time, the other co-accused i.e. accused No.2 Sk. Shammi Sk. Mannu dealt a blow of sword on his head, due to which, he sustained the grievous injuries. His cross-examination discloses about the topography of his house. It also disclosed that distance between his house and the house of PW-8 Roshankhan is 300 ft. His character is also brought on record which shows that he was accused in murder case. It also shows that there is no door to the rear wall of this house and only two doors to his house towards the East side. It further came on record that the accused persons from the charge that they have teased the complainant’s granddaughter were acquitted. The political rivalry 27.cri.appeal.434.2017.Judgment.odt (13) also brought on record, however, witness denied that he belongs to the group of one Jatankhan, however, admitted that the accused belongs to the group of Rahamankhan. He specifically admits that from his house, the activities outside the house, if the door of his house is closed, are not visible. His cross- examination further shows that he has not disclosed the name of the assailants while disclosing the dispute to the Medical Officer. Some omissions are also brought on record. 15. To corroborate his version, the prosecution has also examined PW-8 Roshankhan Vilayatkhan, whose evidence shows that on 17.10.2007 at about 8.00 to 9.00 p.m. when he was returning from his work, he saw the accused persons proceeding with weapons in their hands. They were ahead of him. At the relevant time, one person assaulted him of his back by stick and accused Javedkhan assaulted him by pipe near left eye and accused No.2 Sk. Shammi assaulted him by sword on his head, due to which, he fell unconscious on the spot. The police have also seized his blood stained shirt after the incident. His cross- examination shows that the distance between his house and the house of the complainant there are 5 to 6 houses. He admitted that at the relevant time accused persons were proceeding ahead of him and they did not come behind him. Thus, as per the evidence of this witness, he has sustained the injury on the road 27.cri.appeal.434.2017.Judgment.odt (14) when he was returning to his home and the accused persons were ahead of him. His evidence nowhere shows that when he entered in the house of PW-6 Imdad Husain to rescue him, at that time, he received the injuries. 16. PW-9 Ahtesham Husain is the son of PW-6 Imdad Husain, who has also narrated about the incident. As per his evidence, on 17.10.2006 he was standing in front of the house. All the accused came in front of his house holding weapons in their hands. As he was scared, therefore, he fled away from the spot of incident. The accused persons have caused damage to the vehicles which were in front of his house and also entered into the house and assaulted PW-6 Imdad Husain. His cross- examination specifically shows that he had not seen the incident which took place inside the house. He also admitted that he did not see who actually broke the vehicle. His statement was also not recorded immediately after the incident. 17. The other eyewitness examined by the prosecution is PW-12 Rakshanda, whose evidence shows that on 17.10.2007 she was in the house of her father PW-6 Imdad Husain. About 22 people attacked on their house. She narrated the names of the accused persons. She stated that she has witnessed the incident of causing damage to the vehicles from the window of the drawing room. The accused persons assaulted her father by 27.cri.appeal.434.2017.Judgment.odt (15) means of sword, who sustained the injuries on his head. She also stated that PW-8 Roshankhan came to rescue them, he was also assaulted by the accused persons. Her cross-examination also shows that her husband was convicted for life imprisonment. She further admitted that the accused Amjadkhan and Mohsinkhan are acquitted from the charges, which were levelled against them, on the basis of complaint by her daughter Alvira. She has stated that the shirt and banyan of her father was stained with blood. She specifically stated that her brother PW-9 Ahtesham was not present at the time of the incident. Thus, her cross-examination shows that PW-9 Athesham was not present at the house. She gave a contrary evidence to PW-6 Imdad Husain that his clothes were stained with blood, whereas PW-6 Imdad Husain stated that there were no blood stains on his clothes. As per her evidence, PW-8 Roshankhan entered in her house, whereas as per the evidence of PW-8 Roshankhan, he has sustained the injuries when he was proceeding behind the accused persons. 18. Besides this eyewitnesses PW-1 Abdul Rub Abdul Nabi is another eyewitness examined, but he has not supported the prosecution case. 19. Besides the oral evidence of these eyewitnesses, prosecution has also placed reliance on the medical evidence by 27.cri.appeal.434.2017.Judgment.odt (16) examining PW-13 Dr. Ashok Bhausaheb Nazan, who testified that at the relevant time, he was working as a Medical Officer at Rural Hospital, Ner. On 17.10.2007 at 12.20 p.m., he received the requisition from Ner Police Station to examine PW-8 Roshankhan Vilayatkhan Pathan, who was brought by Head Constable B. No. 335 of Ner Police Station. He has given the history of assault by someone and complained the injury over forehead. On examination, he found PW-8 Roshankhan has sustained following injuries: (i) Lacerated wound of size 3 X 1 cm of left side of forehead, (ii) Lacerated wound of size 3 X 1 cm on right side of forehead. His further evidence shows that there was no evidence of other injuries over body. The injuries were caused by hard and blunt object. Accordingly, he issued the Medical Certificate Exh.184. 20. On 18.10.2007, he has examined another patient PW-6 Imdad Husain Gulam Husain, who has also given history of assault by someone. On examination, he found lacerated wound of 1 X 1 cm over right eyebrow. In his opinion, the injury may have been caused by hard and blunt object. Accordingly, he issued the certificate Exh.185. He specifically stated that the injuries caused to both the patients are not sufficient in ordinary 27.cri.appeal.434.2017.Judgment.odt (17) course of nature to cause death. The injuries sustained by the patients may be caused due to wooden log and iron pipe. His cross-examination shows that the injuries sustained by both the patients were not on the vital parts. He also admitted that he has not mentioned the depth of the injuries in the medical certificate. 21. During evidence, prosecution also placed reliance on various panchanams and seizure memos. As per the prosecution case, PW-2 Afsarkhan Hashmatulla Khan acted as a panch on various seizure memos regarding seizure of the articles at the instance of accused No.6 Mohammad Rafique, accused No.7 Shadatkhan, accused No.8 Mohsinkhan, accused No.9 Mohammad Shakir, accused No.10 Sabirkhan, accused No.11 Sk. Wasim, accused no.12 Jalimkhan, accused 13 Aniskhan, but he has not supported the prosecution case. PW-4 Imrankhan Amanullakhan also acted as a panch on seizures of the weapon at the instance of the accused persons, but he also not supported the prosecution case. PW-5 Sayyed Akil Sayyed Issa acted as panch on seizure memos at the instance of accused No.16 Yusufkhan, but he also turned hostile and not supported the prosecution case. 22. PW-3 Sayyed Shakil Sayyed Jabbar, who acted as panch on memorandum statement of accused No.4 Amjadkhan. He 27.cri.appeal.434.2017.Judgment.odt (18) supported the prosecution case to the extent his signature on the memorandum statement. Rest of the portion of the memorandum statement, he denied. To prove the memorandum statement and recovery at the instance of the accused No.4 Amjadkhan prosecution has examined PW-10 Sheikh Arif Sheikh Rasul. As per his evidence, accused No.4 Amjadkhan gave a statement that he will show the place where he concealed the articles, accordingly, it was recorded. Thereafter, they proceeded at Nawabpura, then accused got down in the vehicle, went in the house, took out the sword beneath the iron box, accordingly, it was seized. His cross-examination shows that he cannot read and write. He is unable to state what is written in the memorandum statement. He only signed on the panchanama on the say of police. He further admits that the accused was in a handcuff condition at the relevant time. 23. As none of the panch witnesses have supported the prosecution case, therefore, prosecution placed reliance on the evidence of PW-14 Dinkar Sampatrao Bhanuse. His evidence shows that he has seized one wooden log from accused No.6 Mohammad Rafique by drawing panchanama Exh.207. He seized iron pipe at the instance of accused No.7 Shadatkhan by drawing panchanama Exh.208. He seized one stick from accused No.8 Mohsinkhan by drawing panchanama Exh.209. He seized the 27.cri.appeal.434.2017.Judgment.odt (19) stick from accused No.9 Mohammad Shakir, one stick from accused No.10 Sabirkhan, one stick from accused No.11 Chinya, one stick from accused No.12 Jalimkhan and one stick from accused No.13 Aniskhan. The said seizure memos are at Exh. 210 to 214. 24. His evidence further shows that on 16.12.2007 accused No.4 Amjadkhan Abrarkhan gave memorandum statement that he is ready to produce the sword. Accordingly, his memorandum statement was recorded. Thereafter, they all proceeded at Nawabpura. The accused produced one sword and it was seized. The memorandum statement is at Exh.215 and panchanama is at Exh.216. 25. As to recovery of blood stained shirt of PW-8 Roshankhan prosecution has adduced the evidence of PW-7 Sheikh Mannu, who testified that in his presence the blood stained shirt of PW-8 Roshankhan was seized by drawing panchnama Exh.139. His cross-examination shows that in his presence, the shirt was not sealed. PW-14 Dinkar Bhanuse also stated about the seizure of the blood stained shirt of PW-8 Roshankhan. 26. Besides the above said evidence, the evidence of Investigating Officer also states that the articles which were 27.cri.appeal.434.2017.Judgment.odt (20) seized referred to the CA on 26.06.2008. The CA reports at Exh.227 and 228 shows that the blood group of injured PW-8 Roshankhan is of ‘O’. Full shirt of the PW-8 Roshankhan has innumerable blood stains, similarly the sword wrapped seized from the accused No.2 Sk. Shammi, upon which the human blood was found. 27. The learned trial Court after appreciating the evidence come to the conclusion that the evidence of the injured witnesses is not trustworthy and, therefore, disbelieved those witnesses. It is well settled that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of credit. When the said discrepancies goes to the root of the matter then only it would effect the prosecution case. Thus, while assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence 27.cri.appeal.434.2017.Judgment.odt (21) at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. Admittedly, the legal position is clear that the prosecution must stand on its own legs and it cannot derived any strength from the weakness of the defence where various links in the chain are in themselves to be established by the prosecution beyond reasonable doubt. 28. In the light of this evidence, if the evidence of the prosecution witnesses is examined admittedly, the evidence of PW-6 Imdad Husain, who lodged a report about the incident shows that Roshankhan i.e. PW-8 has sustained the injuries when he intervened in the quarrel inside the house. Whereas the evidence of PW-8 Roshankhan shows that when he was proceeding towards his house, he was assaulted by the accused. Thus, evidence of PW-8 Roshankhan nowhere discloses that at any point of time, he entered into the house of the informant to intervene in the quarrel. The another inconsistency which reveals from the evidence that as per PW-6 Imdad Husain some of the accused entered in his house by climbing the rear side wall of his house. Whereas, his cross-examination shows that there was no door towards the rear side wall of his house. His house is having two doors i.e. towards the East. His further cross- 27.cri.appeal.434.2017.Judgment.odt (22) examination shows that as far as the incident which occurred outside the house is concerned, it is not visible if any person is inside the house. Whereas PW-12 Rakshanda stated that she has witnessed the incident from the window of her house. Thus, contradictory evidence is adduced by the prosecution as far as the witnessing of the incident from inside the house is concerned. Thus, the evidence of PW-6 Imdad Husain, PW-8 Roshankhan and PW-12 Rakshanda is not consistent as to the incident and, therefore, the learned trial Court has rightly disbelieved the evidence. As far as the medical evidence is concerned, it is specifically stated by PW-6 Imdad Husain and PW-8 Roshankhan that they were assaulted by means of sword, however, considering the nature of injuries, the Medical Officer in specific words stated that the injuries sustained by both the witnesses by hard and blunt object. Moreover, the injuries were not on vital part of body. Medical Officer further admitted that if somebody dashed against the door such type of the injuries are possible. He has specifically stated that the injury caused to both the patients are not sufficient in ordinary course of nature to cause death. Thus, medical evidence is also not corroborative the oral evidence. 29. We are aware about the settled legal position that the evidence of injured witnesses is at a higher pedestal, but here the evidence of injured witnesses PW-6 Imdad Husain and PW-8 27.cri.appeal.434.2017.Judgment.odt (23) Roshankhan, as far as the incident of assault on PW-8 Roshankhan as well as PW-6 Imdad Husain is concerned, which is not consistent and not corroborated by the medical evidence also. The prosecution has to establish the charge beyond reasonable doubt. Admittedly, beyond reasonable doubt is not a mathematical formula. The phrase ‘beyond reasonable doubt’ has been often referred to and is well understood. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt. Considering the cardinal principle of criminal jurisprudence that the guilt of accused must be proved beyond on reasonable doubt. Here in the present case, the direct evidence in the nature of the eyewitnesses is not inspiring the confidence and the entire genesis as to the occurrence of incident itself is doubtful. The prosecution further placed reliance on the memorandum statement of accused No.4 Amjadkhan and recovery at the instance of the accused. As we have already observed that the prosecution witnesses i.e. PW-1 Abdul Rub Abdul Nabi, PW-2 Afsarkhan, PW-4 Imrankhan and PW-5 Sayyed Akil have not supported the prosecution case. Though PW-10 has supported the case, but his evidence nowhere reflects that the voluntary 27.cri.appeal.434.2017.Judgment.odt (24) statement was made by the accused and in view of the said voluntary statement, accused led them at the spot. The nature of evidence which required to be established for the recoveries to show that the accused made voluntary statement and in pursuance of the said statement, there was discovery of fact which was not within the knowledge of the investigating agency. PW-10 Sheikh Arif specifically admitted that merely because police asked him to sign on the said memorandum statement and the panchanama, he has signed on it. 30. As the panch witness has not supported the prosecution case, the prosecution relied upon the evidence of Investigating Officer, but his evidence is also not establishing that in view of the requirement of Section 27 of the Indian Evidence Act, the panchanama was drawn. The nature of evidence which required to be established to prove the recoveries is explained by the Hon’ble Apex Court in the case of Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh, (2023) 16 SCC 510, wherein the Hon’ble Apex Court held in para 56, which reads as under: “56. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive 27.cri.appeal.434.2017.Judgment.odt (25) at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” 31. It is further held by the Hon’ble Apex Court that “we are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to 27.cri.appeal.434.2017.Judgment.odt (26) consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.” Thus, the requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama which is not proved in the present case. 32. As far as the chain of custody of the recovered articles are concerned, it reveals that various articles i.e. weapons were recovered on 13.12.2007, memorandum statement of accused No.4 Amjadkhan was recovered on 16.12.2007 and the sword was recovered at the instance of accused No.2 Sk. Shammi on 16.04.2008. Whereas, requisition to CA shows that it was forwarded to CA on 26.06.2008 i.e. after four months. The weapon was also recovered after four months and thereafter, after four months, it was forwarded to CA. As far as chain of custody since the seizure till it is forwarded to CA is not established by the prosecution. The evidence of Investigating Officer is completely silent on the aspect of chain of custody of the said articles. 33. In the case of Pooranmal Vs. State of Rajasthan & Ors., MANU/SC/0213/2026, wherein by referring the judgment in the case of Karandeep Sharma alias Razia alias Raju Vs. State of Uttarakhand, MANU/SC/0446/2025, the 27.cri.appeal.434.2017.Judgment.odt (27) Hon’ble Apex Court emphasised that for a DNA/FSL report to be acceptable and reliable, the prosecution must establish an unbroken chain of custody and demonstrate that the samples remained duly sealed and untampered throughout, and held as follows: “54. In order to make the DNA report acceptable, reliable and admissible, the prosecution would first be required to prove the sanctity and chain of custody of the samples/articles right from the time of their preparation/collection till the time they reached the FSL. For this purpose, the link evidence would have to be established by examining the concerned witness. 55. Evidently, there is not even a semblance of evidence on record to satisfy the Court that the samples/articles collected from the dead body of the child-victim and those collected from the appellant which were later forwarded to the FSL were properly sealed or that the same remained in a self-same condition right from the time of the seizure till they reached the FSL. No witness from the FSL was examined by the prosecution to prove that the samples/articles were received in a sealed condition. Hence, there is every possibility of the samples being tampered/manipulated by the police officers so as to achieve a favourable result from the FSL, thereby, inculpating the appellant in the crime.” 34. In view of the analysis of evidence made above, we are of the firm view that the requisite link evidence essential to prove the safe-custody of the muddamal articles is lacking and the chain of custody has been breached. Therefore the CA report is also unacceptable. 27.cri.appeal.434.2017.Judgment.odt (28) 35. Thus, in the present case, the direct evidence as well as the circumstantial evidence, which is appreciated by the trial Court falls short to inspire the confidence in favour of the prosecution. The learned trial Court has rightly ignored the said evidence and acquitted the accused. Considering the well settled principle that interference in the appeal against acquittal under Section 378 of the Code of Criminal Procedure, when the trial Court has ignored the material evidence, the evidence which was taken into consideration by the trial Court and taken a possible view as the trial Court has thoroughly appreciated the evidence on record and gave consideration to all the material evidence, we do not find that the decision of the trial Court is based on any error of law or fact and, therefore, we do not find that this is a fit case wherein interference is called for. Therefore, the appeal being devoid of merits and liable to be dismissed. Accordingly, it is dismissed. (RAJ D. WAKODE, J) (URMILA JOSHI-PHALKE, J) Sarkate. Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 11/09/2026 18:20:22