JUDGMENT : SANJAY KUMAR MEDHI, J. 1. The appeal has been preferred under Section 372 of the Cr.PC against the judgment and order dated 31.08.2017 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 30 of 2013 acquitting the accused persons of the offence under Section 341/302/325/34 IPC. 2. Before going to the aspect of adjudicating an appeal against an order of acquittal, it is required to keep in mind the principles which are to be followed in such adjudication process. The principles are judicially evolved in a catena of judgments and one of the landmark case was rendered by the Hon’ble Privy Council in the case of Sheo Swarup vs. King-Emperor, AIR 1934 PC 227 , wherein the following principles were laid down: “Sects. 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.” 3. The aforesaid principles have been followed and reiterated in a catena of judgments by the Hon’ble Supreme Court including the case of Ghurey Lal Vs. State of Uttar Pradesh, (2008) 10 SCC 450 , the relevant observations being extracted herein below: “3. We have endeavoured to set out the guidelines for the appellate courts in dealing with appeals against acquittal. The aforesaid principles have been followed and reiterated in a catena of judgments by the Hon’ble Supreme Court including the case of Ghurey Lal Vs. State of Uttar Pradesh, (2008) 10 SCC 450 , the relevant observations being extracted herein below: “3. We have endeavoured to set out the guidelines for the appellate courts in dealing with appeals against acquittal. An overriding theme emanates from the law on appeals against acquittals. The appellate court is given wide powers to review the evidence to come to its own conclusions. But this power must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate court should attach due weight to the lower court's acquittal because the presumption of innocence is further strengthened by the acquittal. The appellate court should, therefore, reverse an acquittal only when it has "very substantial and compelling reasons." 73. On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. The settled legal position as explained above is that if the trial court’s view is possible and plausible, the High Court should not substitute the same by its own possible views. The difference in treatment of the case by two courts below is particularly noticeable in the manner in which they have dealt with the prosecution evidence. While the trial court took great pain in discussing all important material aspects and to record its opinion on every material and relevant point, the learned Judges of the High Court have reversed the judgment of the trial court without placing the very substantial reasons given by it in support of its conclusion. The trial court after marshalling the evidence on record came to the conclusion that there were serious infirmities in the prosecution’s story. Following the settled principles of law, it gave the benefit of doubt to the accused. In the impugned judgment, the High Court totally ignored the settled legal position and set aside the well-reasoned judgment of the trial court. 74. The trial court categorically came to the finding that when the substratum of the evidence of the prosecution witnesses was false, then the prosecution case has to be discarded. In the impugned judgment, the High Court totally ignored the settled legal position and set aside the well-reasoned judgment of the trial court. 74. The trial court categorically came to the finding that when the substratum of the evidence of the prosecution witnesses was false, then the prosecution case has to be discarded. When the trial court finds so many serious infirmities in the prosecution version, then the trial court was virtually left with no choice but to give benefit of doubt to the accused according to the settled principles of criminal jurisprudence.” 4. Subsequently, the Hon’ble Supreme Court has reiterated the principles including in the case of State of U.P. vs. Banne @ Baijnath & Ors. (2009) 4 SCC 271 . The following broad principles have been laid down: “27. The following principles emerge from the aforementioned cases. 1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed to be innocent until proved guilty. The accused possessed this presumption when he was before the trial court. The High court's acquittal bolsters the presumption that he is innocent. 3. There must also be substantial and compelling reasons for reversing an order of acquittal.This court would be justified in interfering with the judgment of acquittal of the High Court only when there are very substantial and compelling reasons to discard the High Court decision. 28. Following are some of the circumstances in which perhaps this court would be justified in interfering with the judgment of the High Court, but these are illustrative not exhaustive. i) The High court's decision is based on totally erroneous view of law by ignoring the settled legal position; ii) The High court's conclusions are contrary to evidence and documents on record. iii) The entire approach of the High court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; iv) The High court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; v) This Court must always give proper weight and consideration to the findings of the High Court. vi) This court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.” 5. Keeping the aforesaid principles laid down in mind, the present appeal is being considered and decided. 6. The criminal law was set into motion by lodging of an Ejahar by one Samsul Hoque (PW 5) on 16.10.2010. It was alleged that on the previous day i.e., 15.10.2010 at about 11:30 a.m. while he and his younger brother were travelling to Morigaon, the accused persons had dragged his younger brother Azahar Uddin down from the bus after stopping the same at the road at Goroimari Chariali. They surrounded him and inflicted grievous injuries on him by attacking with bricks and wooden baton. The same was resisted by Khairul and Baharul and they were also assaulted and inflicted grievous injury. At 7:00 p.m. in the evening Azahar Uddin died in the Morigaon Civil Hospital. When the police of Laharighat Police Station went to rescue the injured person at the place of occurrence, the accused persons had also assaulted them. 7. Based on the aforesaid Ejahar, Laharighat PS Case No. 162/10 under Section 302/34 IPC was registered and investigation was carried out. However, the investigation ended in a Final Report (FR) dated 31.12.2011. The report had clearly stated that it could not be ascertained as to who was involved in the assault. 8. The appellant had however filed a Narazi petition (protest petition) on which the complainant was examined under Section 202 of the Cr.PC (corresponding to Section 225 of the BNSS, 2023). Thereafter, the case was committed and the learned Session Judge framed charges under Sections 341/302/325 read with Section 34 of the IPC and there were 5 nos. of prosecution witnesses. 9. PW1 is one Khairul, who had stated that he was coming from Laharighat towards Morigaon along with certain other persons including the deceased in a 407 bus. The bus was stopped when the accused persons had dragged him along with the deceased and took them to a nearby rice mill where 16 - 17 persons had gathered and out of that, he could recognize Marfat Mandal, Hibjur, Tamizuddin, Sabbir Ahmed. They were beaten by stick from the police who had come there. Thereafter, they were rescued and taken to the Barsola out post. They were beaten by stick from the police who had come there. Thereafter, they were rescued and taken to the Barsola out post. He had sustained injury on head and other parts of the body and such injuries were also sustained by Baharul and the deceased. The deceased was sent to Morigaon Civil Hospital where he had succumbed to his injuries. In the cross- examination, however, he had stated that as many persons had gathered there who were not known to him, he could not recognize those persons. He had also stated that he had only heard their names at the time of occurrence. He had made a categorical statement that he could not remember the persons present in the dock whether those persons had assaulted him. It may be noted that PW 1 was re-examined by the prosecution when he had proved his statement recorded under Section 202 of the Cr.PC (corresponding to Section 225 of the BNSS, 2023) which was proved as Exhibit 4. In the cross-examination, after such re-examination, PW 1 had however stated that he had mentioned in Exhibit 4, the names of some persons who were known to him from others and that they were accosted and restrained by more than thousand persons who had assaulted them. He had also stated that he could not exactly say particularly who had assaulted them and that, he could not identify the persons since there were more than one thousand persons at the relevant time. 10. PW 2 is the Doctor, who had conducted the post-mortem. He had given an opinion that the death was caused by random public beating. The post mortem report was proved as Exhibit 1 and the following opinion was given: “Opinion: In my opinion the death is due to haemorrhage and shock due to injury sustained.” 11. PW 3 is one of the co-passengers. He had however stated that he could not recognize the accused. The said witness was declared hostile. 12 . PW 4 had stated that he was travelling in the same bus. However, in the cross-examination, he had clarified that the accused were not those persons who were in the dock. 13 . PW 5 is the informant, who had however disclosed that at the relevant time, he was at his home. The said witness was declared hostile. 12 . PW 4 had stated that he was travelling in the same bus. However, in the cross-examination, he had clarified that the accused were not those persons who were in the dock. 13 . PW 5 is the informant, who had however disclosed that at the relevant time, he was at his home. It may be mentioned that in the Ejahar he had given an impression that he was travelling with the deceased in the bus. He had stated that a dying declaration was made to him which however was not mentioned in the FIR. He had also stated that after lodging of the FIR, the statement was recorded in the Court. However, no such statement recorded under Section 164 of the Cr.PC (corresponding to Section 183 of the BNSS, 2023) was produced or proved. 14 . The Court had also examined a Court Witness who is the father of the deceased and also the present appellant. He has stated that at the time of the incident, he was at Haladhibari which was 10-11 km from the place of occurrence when one Kadir had telephoned him and told that Khairul, Baharul and Azahar Uddin were assaulted by the village people. He had then gone to the hospital and asked the deceased who told him that Khairul gave a bag to him inside a car and they had changed their positions of their seats. He had also stated that the deceased told the names of Marfat Mandal, Hibjur, Tamizuddin and Sabir Ahmed and he died in the hospital whereafter his nephew had lodged the Ejahar. 15 . After the aforesaid witnesses were examined, the accused were examined under Section 313 of the Cr.PC. (corresponding to Section 351 of BNSS, 2023) and the allegations were denied. The learned Session Judge, after considering the materials on record, had come to a finding that there was nothing on record to come to a conclusion of guilt of the accused persons and accordingly, the impugned judgment has been passed acquitting the accused persons. It is the aforesaid judgment dated 31.08.2017 which is the subject matter of challenge in the present appeal. 16 . We have heard Shri P. Katakey, learned counsel for the appellant. We have also heard Shri A. C. Borbora, learned Senior Counsel assisted by Shri N. Saikia, learned counsel for the private respondents and Ms. It is the aforesaid judgment dated 31.08.2017 which is the subject matter of challenge in the present appeal. 16 . We have heard Shri P. Katakey, learned counsel for the appellant. We have also heard Shri A. C. Borbora, learned Senior Counsel assisted by Shri N. Saikia, learned counsel for the private respondents and Ms. A. Begum, learned Addl. PP, Assam for the State. 17 . Shri Katakey, the learned counsel for the appellant has submitted that the prosecution did not conduct the case in a proper manner. He has submitted that there were materials which should have been brought on record and proved in accordance with law which was not done. He has submitted that it clearly appears that PW 5 had recorded his statement under Section 164 of the Cr.PC (corresponding to Section 183 of the BNSS, 2023) and such statement was not brought on record. He has also submitted that the role played by the prosecution in the trial, more particularly, the learned APP, was perfunctory. He accordingly prays that in the interest of justice, the matter be remanded for a fresh trial. 18. Per contra, Shri Borbora, the learned Senior Counsel for the accused has submitted that all opportunities were afforded to the prosecution to prove the case. He has, however, emphasized that in a criminal trial, such proof has to be done on the yardstick of “beyond all reasonable doubt”. By highlighting the aspect that there was re-examination of PW 1, the learned Senior Counsel has submitted that the learned Trial Court, on its own had given due opportunity to the prosecution to prove the case which the prosecution had miserably failed. He has submitted that admittedly there was a crowd of more than 200 people and none of the prosecution witnesses could prove any involvement of the accused persons and the materials, on the other hand, would show that the accused persons were not involved in the incident. 19 . By relying upon the observations made by the learned Session Judge in paragraph 10 of the judgment, the learned Senior Counsel has submitted that the learned Judge took into consideration all the relevant materials available and considering that the incident took place in a huge public gathering, had come to the aforesaid finding. 19 . By relying upon the observations made by the learned Session Judge in paragraph 10 of the judgment, the learned Senior Counsel has submitted that the learned Judge took into consideration all the relevant materials available and considering that the incident took place in a huge public gathering, had come to the aforesaid finding. On the aspect of the deposition of the Court Witness, who is the father of the deceased, the learned Senior Counsel has submitted that under Section 154 of the Evidence Act (corresponding to Section 173 of BNSS, 2023) there is a discretion vested with the Court by use of the expression “may”. 20. On the aspect of declaring the PW3 as hostile, reliance has been put upon the judgment of the Hon’ble Supreme Court in the case of Sat Paul Vs. Delhi Administration, AIR 1976 SC 294 and the following observations are pressed into service: “51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.” 21 . On the aforesaid aspect of hostile witnesses, reliance has also been made on the case of Pandappa Hanumappa Hanamar & Ors. ( 1997) 10 SCC 197 which had followed the earlier decision of Sat Paul (supra). 22 . On the aforesaid aspect of hostile witnesses, reliance has also been made on the case of Pandappa Hanumappa Hanamar & Ors. ( 1997) 10 SCC 197 which had followed the earlier decision of Sat Paul (supra). 22 . The learned Senior Counsel has submitted that a retrial cannot be a matter of routine and can be directed only on exceptional circumstances. In this connection, he has relied upon the case of Ajay Kumar Ghoshal & Ors. AIR 2017 SC 804 wherein the condition when a retrial can be ordered have been laid down. The relevant observations are extracted herein below: “11. Though the word "retrial" is used Under Section 386 (b) (1) Code of Criminal Procedure., the powers conferred by this Clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard. 12. 'De novo' trial means a "new trial" ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold 'de novo' trial. But the question is when such power should be exercised. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold 'de novo' trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe v. State of Maharashtra (1964) SCR 926 , the Court held that: An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an Accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the Accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person Accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. 13. This Court, while dealing with the question whether the High Court should have quashed the trial proceedings only on account of declaration of the legal position made by the Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act, this Court stated, "a de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable; it should be limited to the extreme exigency to avert 'a failure of justice'. Observing that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial". In State of M.P. v. Bhooraji and Ors, (2001) 7 SCC 679, the Court went on to say further as follows: 8.... Observing that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial". In State of M.P. v. Bhooraji and Ors, (2001) 7 SCC 679, the Court went on to say further as follows: 8.... This is because the appellate court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of Justice otherwise. Hence, the sald course can be resorted to when it becomes unpreventable for the purpose of averting "a failure of justice". The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed their versions in the very same Case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.” 23 . The learned Senior Counsel accordingly submits that the present appeal does not warrant any merit and is liable to be dismissed. 24 . Ms. A Begum, learned APP has however submitted that the cross- examination of the prosecution witnesses appears to have been done after a long gap and therefore there were certain inconsistencies. 25 . The rival contentions advanced by learned counsel for the parties have been duly considered and the materials placed before this Court including the TCRs have been carefully perused. 26 . The yardstick of proof in a criminal trial is beyond all reasonable doubt and there is no dispute to the aforesaid proposition of law. In the instant case, there are 5 nos. of Prosecution Witnesses and one Court Witness. 26 . The yardstick of proof in a criminal trial is beyond all reasonable doubt and there is no dispute to the aforesaid proposition of law. In the instant case, there are 5 nos. of Prosecution Witnesses and one Court Witness. None of the witnesses presented by the prosecution could make any accusation against the accused persons. All the witnesses were subjected to cross-examination in which they had admitted that there was no direct evidence of involvement of the accused persons. This Court has also noted that PW 1 was also re-examined so as to bring on record his statement recorded under Section 202 of the Cr.PC. (corresponding to Section 225 of the BNSS, 2023) However, in the cross-examination made thereafter, no incriminating materials could be brought out against the accused persons. So far as the Court Witness No. 1, who is the appellant is concerned, a careful perusal of his depositions would show that he is merely a hearsay witness and he had candidly admitted that one Kadir had phoned him who himself was not examined. He had also made a bald statement that the attack was made by village people. He had also stated that the deceased had told some names but no act has been attributed at all to any of the deceased. 27 . As laid down by the various judicial pronouncements including the Privy Council as noted above, there is a presumption of innocence of an accused person in a criminal case and such assumption is fortified by a judgment of acquittal in which the party preferring an appeal against such judgment is under a heavy burden to make out a case that the materials on record would inevitably lead to a conclusion of guilt of the accused person beyond all reasonable doubt. In the opinion of this court, the said burden has not been discharged at all. This court has also carefully perused the materials on record including the evidence and the exhibits and the same would not be sufficient at all to come to a conclusion of guilt. 28 . We are of the opinion that the conclusion arrived at by the learned Session Judge in the impugned judgment is in accordance with law which does not require any interference. 29 . The appeal is accordingly dismissed. 30 . Send back the records.