(Dictated By Hon’ble Rajeev Misra,J)
1. Zafar (first informant) has approached this Court by means of present criminal appeal challenging the judgment dated 05.05.2026 passed by Sessions Judge, Amroha in Sessions Trial No. 173 of 2019 (State Vs. Ajeet and 26 Others) arising out of Case Crime No. 15 of 2015, under Section 323/34, 336/34, 304/34 and 504 IPC, Police Station-Hasanpur, District-Amroha, whereby accused/opposite parties 2, 3 & 4 have been acquitted of the charges framed against them under aforesaid sections.
2. We have heard Mr. Sameer Khan, the learned counsel for appellant and the learned A.G.A. for State-opposite party-1.
3. Perused the record.
4. Record shows that in respect of an incident, which is alleged to have occurred on 14.01.2025, first informant Zafar (appellant herein) submitted a written report dated 14.01.2025 (Ext-Ka-1) at Police Station-Hasanpur. Since the aforesaid written report clearly unfolds the prosecution story, therefore, for ready reference, the aforementioned written report as transcriped in the impugned judgment is reproduced herein below;-
5. Upon submission of aforementioned written report, PW-5, Constable Chhotey Lal Sharma, who was posted as Constable Clerk at Police Statio-Hasanpur, entered the said report in the General Diary of police station i.e. GD Entry No.-16 timing 11:30 hours dated 14.01.2025 (Ext-Ka-3). On the basis of above, PW-5, thereafter, prepared the check FIR dated 14.01.2025 timing 11:30 hours (Ext-Ka-2). Same was registered as Case Crime No.-15 of 2015, under Section 323, 336, 304 & 506 IPC, Police Station-Hasanpur, District-Amroha. In the aforesaid FIR, three persons namely (1) Ajeet, (2) Nagina and (3) Suleman @ Pappu were nominated as named accused.
6. After aforementioned FIR was lodged, PW-7 Inspector Vijay Singh Rana, who was posted at Police Station-Hasanpur, District-Amroha arrived on the spot. He, thereafter, appointed the Panch Witnesses i.e. the witnesses of inquest for getting the inquest/Panchayatnama of deceased conducted. Upon conclusion of proceedings of inquest/Panchayatnama, PW-7 prepared the inquest report/Panchayatnama of deceased dated 14.01.2025, which is (Ext-Ka-5). PW-8, thereafter, prepared the police papers i.e. Police Form No.-33 (Ext-Ka-6), Challan Lash (Ext-Ka-7), Photo Nash (Ext-Ka-8), Specimen of Seal (Ext-Ka-9), Letter to RI (Ext-Ka-10), Letter to CMO (Ext-Ka-11). Upon completion of above-mentioned formalities, PW-8 got the dead body of deceased sealed and dispatched for postmortem.
7. Subsequently, PW-8 Inspector Som Prakash was appointed as the Investigating Officer. After completing the necessary formalities, Investigating Officer proceeded to the place of occurrence. He examined the first informant, the injured witnesses and other witnesses, under Section 161 Cr.P.C. On the pointing of first informant, Investigating Officer prepared site plan of the place of occurrence (Ext-Ka-12).
8. The injured Muzaffar was medically examined on 14.01.2025 by PW-10 Dr. Mohit Gupta at 12:10 p.m. at Community Health Center, Amroha. PW-10 then prepared the injury report regarding aforesaid injured dated 14.01.2025 (Ext-ka-15). The following injuries were found on the body of injured Muzaffar;-
“A scratch wound measuring 0.5 cm x 0.3 cm was present on the left side of the head and swelling measuring 04 cm x 03 cm was also present.”
9. On the same day, the other injured Zafar was also examined at Community Health Center, Amroha by PW-10 Dr. Mohit Gupta. Thereafter, PW-10 prepared the injury report dated 14.01.2025 of aforesaid injured (Ext-ka-16). The following injuries were found on the body of injured Zafar:-
“(i). A lacerated would on the left side of the head, 06 cm above the left eye brow, which was skin deep.
(ii). An abrasion with swelling measuring 05 cm x 03 cm on the right side of the head.”
10. PW-4 Dr. Gopi Lal conducted Autopsy on the body of deceased on 15.01.2015. The Autopsy Surgeon found following anti-mortem injuries on the body of deceased;-
“A lacerated would measuring 02 cm x 02 cm present on the left side of the face.”
11. Upon internal examination, the Autopsy Surgeon discovered as follows:-
“On internal examination, both lungs were congested. All four chambers of the heart were filled with blood. Portions of the stomach, small intestine, large intestine, and liver were preserved. The liver, spleen, and both kidneys were congested.”
12. In the opinion of Autopsy Surgeon, the death of deceased had occurred one day ago. Since the cause of death of deceased could not be ascertained, therefore, the viscera of deceased was preserved. However, according to the Autopsy Surgeon, death of deceased might have been caused due to cardiac arrest. Upon completion of postmortem proceedings, PW-4, the autopsy surgeon prepared the postmortem report (Ext-Ka-4).
13. The body part’s of deceased which were preserved by the autopsy- surgeon, were sent of chemical examination. However, as per viscera report paper no. 85B/2, no forensic chemical compound was found in the same.
14. On the basis of above and other material collected during course of investigation, Investigating Officer PW-8 submitted the charge sheet (Ext-Ka-13) against accused Suleman @ Pappu. The Investigating Officer subsequently submitted the supplementary charge sheet (Ext-Ka-14) against accused Ayub and Najma. All the accused were charge-sheeted for an offence under Sections 323/ 34, 336/34, 304/34 and 504 I.P.C.
15. Upon submission of aforementioned charge sheet, Chief Judicial Magistrate, Amroha took cognizance upon same, vide cognizance taking order dated 21.03.2016. However, as offence complained of is triable by the Court of Sessions, therefore, the Jurisdictional Magistrate committed the case to the Court of Sessions, vide committal order dated 04.07.2019.
16. Resultantly, Sessions Trial No. 173 of 2019 (State Vs. Ajeet and 26 Others) came to be registered in the Court of Sessions Judge, Amroha. As there was no legal impediment in proceeding with the trial of accused, therefore, concerned Sessions Judge proceeded with the trial. He, accordingly, framed charges against accused, vide framing of charge order dated 29.02.2020. Separate and distinct charges were framed against charge sheeted accused under Sections 323/34, 336/34, 304/34 and 504 IPC.
17. Charge sheeted accused denied the charges so framed against them and demanded trial. As a result, the trial procedure commenced.
18. As a consequence of above, burden fell upon prosecution to lead cogent and reliable evidence to bring home the charges framed against accused. In discharge of aforesaid burden, prosecution adduced the following prosecution witnesses:-
(i). PW-1, Zafar (First informant and injured eye witness)
(ii). PW-2, Mahira (eye witness)
(iii). PW-3, Bilal (witness of fact)
(iv). PW-4, Muzaffar (Injured eye witness)
(v). PW-5, Retd. Constable Chhotey Lal Sharma (Scribe of G.D. and FIR).
(vi). PW-6, Dr. Gopi Lal (Autopsy Surgeon)
(vii). PW-7 Inspector Vijay Singh Rana (He got the inquest/panchayatnama of accused conducted)
(viii). PW-8 Inspector Om Prakash (Investigating Officer)
(ix). PW-9 Retd. Sub Inspector R.C. Verma (Investigating Officer)
(x). PW-10 Dr. Mohit Gupta (He had examined the injured and thereafter prepared the Medico Legal Examination Report of injured)
19. Apart from relying upon the depositions of aforementioned prosecution witness, prosecution also filed documentary evidence in proof of it’s case. For ready reference, the same is tabulated herein under;-
20. After the prosecution evidence was over, all the adverse and incriminating circumstances were disclosed to accused in Question-Answer form for their version of the occurrence as per mandate of Section 313 Cr.P.C. However, accused denied all the suggestions put to them one by one. It was further stated by accused that prosecution witnesses of fact i.e. PW-1, PW-2 and PW-3have given false and incorrect statements. They do not wish to state anything regarding the deposition of PW-6. PW-7 has wrongly prepared the papers. PW-8 has not conducted investigation honestly and therefore, wrongly submitted the charge sheet. PW-9 has also wrongly submitted the charge sheet. PW-10 has prepared wrong report. In addition to above, accused claimed that they they are innocent. Criminal prosecution of accused has been launched due to rivalry and the witnesses have deposed against them due to enmity. No defence evidence was adduced by the accused nor any witness deposed on behalf of accused before Court below.
21. After the stage of evidence was over, oral arguments were made before Court below on behalf of respective parties.
22. On behalf of prosecution, it was urged that the incident occurred on date 14.01.2015. The First Information Report (FIR) was registered at the concerned police station in just half an hour. According to the written complaint, a box containing household items was thrown onto the roof of accused Ayyub by a monkey from the house of the complainant. When Mahira went to retrieve it, the accused hurled filthy abuses. Upon objecting, Muzaffar was attacked with a brick, and a piece of brick (half-brick) struck on the chest of Akhtar, the father of complainant, due to which he fell down and died. P.W.-1 Zafar, P.W.-2 Mahira, P.W.-3 Bilal, and P.W.-4 Muzaffar have fully supported the incident in their respective testimonies. Injury marks were found on the face of the deceased Akhtar, which has been mentioned in his postmortem report prepared by P.W.-10 Dr. Mohit Gupta. The injured in the incident, namely, Muzaffar and Zafar were also medically examined , in which injuries sustained at the time of the incident were found. While two persons were injured, another person namely Akhtar died due to injury caused by stone pelting. The testimonies of injured eye-witntness cannot be ignored. P.W.-3 Bilal is an independent witness. No suggestion was given by the defense to the doctor who performed postmortem of deceased that death of the deceased was natural. Evidence was given against the accused persons by all the prosecution witnesses. Accused Suleman sustained four injuries in the incident, for which no explanation was offered by the defense. According to the site plan, the incident occurred at place 'A'. The presence of injured persons at the place of occurrence cannot be doubted due to injuries received by them in the incident. The prosecution story is proved beyond reasonable doubt. As such, the accused are liable to be convicted.
23. Per contra, on behalf of defense, it was urged that the incident in question occurred on 14.01.2015. The First Information Report was registered at the concerned police station in just half an hour. According to the written complaint, a box containing items was thrown onto the roof top of the house of accused Ayyub by a monkey from the house of the complainant. When Mahira went to retrieve it, the accused hurled filthy abuses, and upon objecting, Muzaffar was attacked with a brick, and a piece of brick (half-brick) struck on the chest of Akhtar, the father of the complainant, due to which he fell down and died. According to the prosecution, Mahira was the first to go on the roof top to fetch the box, but no injury was sustained by Mahira. According to the testimony of P.W.-1 Zafar, a piece of brick hit the chest of deceased Akhtar, but according to the postmortem report of deceased Akhtar, no injury was found on the chest of the deceased; only an abrasion injury was found on the face. An abrasion injury cannot occur from throwing a stone. The inquest report (Panchayatnama) of the deceased was conducted by P.W.-7, in whose testimony it has come that the said inquest took place at the house of Parvez. According to the testimony of P.W.-3 Bilal, he witnessed the incident from the balcony of his house. It was not possible to witness the incident from that place. P.W.-8, the Investigating Officer of the case, admitted in his cross-examination that bricks and stones were not found at the place of occurrence. The Investigating Officer also admitted in his testimony that Muzaffar had denied receiving any injuries on his body. From all the evidence presented by the prosecution, the prosecution case against the accused is not proved beyond reasonable doubt. On the above grounds, prayer was made to acquit the accused persons.
24. In view of the rival submissions urged on behalf of respective parties, Court below scrutinized the record and assessed the evidence to find out the points of determination required to be determined by Court in the trial. As a result of aforesaid exercise, Court below formulated the following point of determination;-
(i). In the present case, the prosecution has to prove that on 14.01.2015 at about 11:00 a.m., at Mohalla Kayasthan, Kasba and Police Station Hasanpur, District Amroha, the accused persons, in furtherance of their common intention, assaulted the complainant Zafar and his family members and voluntarily caused them hurt; attacked them with bricks, thereby endangering their personal safety; caused an injury on the chest of complainant’s father, Akhtar Khan, with a half brick leading to his death, thereby committing culpable homicide not amounting to murder; and abused the complainant and his family members using filthy and obscene language.
25. In order to answer the aforesaid point of determination, Court below examined and evaluated the entire evidence on record to unearth the truth i.e. whether the accused have caused the death of deceased or not?
26. Having undertaken the aforesaid exercise, Court below came to the conclusion that prosecution has failed to prove the guilt of accused beyond doubt much less a reasonable doubt. Resultantly, Court below by means of judgment dated 05.05.2026 acquitted the accused of the charges framed against them.
27. Thus feeling aggrieved by the impugned judgment dated 05.05.2026 passed by Sessions Judge, Amroha, Zafar, the first informant has now approached this Court by means of present criminal appeal.
28. Mr. Sameer Khan, the learned counsel for appellant in challenge to the impugned judgment contended before us that the impugned judgement passed by Court below is manifestly illegal and perverse. As such, the same is liable to be set aside by this Court.
29. Elaborating his aforesaid submission, the learned counsel for appellant contended that it is the specific case of prosecution that in the incident giving rise to present criminal proceedings, 2 persons namely Muzaffar and Zafar sustained injuries on their person. The injuries sustained by the injured stand proved by the medical evidence on record i.e. their injury reports i.e. Ext-Ka-15 and Ext-Ka-16 Apart from above, one person namely Akhtar died. As such, the occurrence stands proved. The prosecution has not disputed the factum of injured having sustained injuries or the injured sustained injuries in another incident.
30. On the above premise, it was contended by the learned counsel for appellant that in view of the manner of occurrence as unfolded in the written report (Ext-Ka-1) and the statements of prosecution witnesses of fact particularly, PW-1, PW-2, PW-3 and PW-4, the criminality committed by accused was not under Section 302 IPC but culpable homicide not amounting to murder i.e. Section 299 IPC. Learned counsel for appellant would thus submit that the parameters required to establish the guilt of accused were not the same as are necessarily required to be proved for an offence of murder as defined under Section 300 IPC.
31. In view of above, the burden upon prosecution was to prove the occurrence itself leading to the death of deceased. As per the depositions of prosecution witnesses of fact i.e. PW-1, PW-2, PW-3 and PW-4, the happening of the incident giving rise to present criminal proceedings stands proved. The prosecution thus discharged it’s burden to establish the guilt of accused. However, Court below has disbelieved the prosecution story by evaluating the deposition of one prosecution witness with another prosecution witness whereas, it is by now well settled that a witness cannot be contradicted with reference to the deposition of another witness. He can be contradicted only with his own previous statement. As such, Court below has erred in law in disbelieving the prosecution case by undertaking aforesaid exercise, which is otherwise uncalled for. On the above premise, learned counsel for appellant thus strenuously urged that the impugned judgment is liable to be set aside and the appeal be allowed.
32. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present appeal. Learned A.G.A. contended that Court below has examined the entire evidence and material on record. As such, it cannot be said that court below has omitted any material or evidence on record from consideratikon. Court below has also not misconstrued any evidence on record either. Therefore, no perversity can be attached to the impugned judgment.
33. According to the learned A.G.A., the deposition of an injured eye witness is placed on a higher pedestal and can be dislodged only on strong and compelling grounds. However, in view of the medical opinion given by the Doctor, who had examined the two injured regarding the manner in which the injuries could have been sustained by injured, court below has rightly disbelieved the two injured eye witness.
34. It was next contended by the learned A.GA. that Court below upon analysis of the deposition of P.W.-3 concluded that P.W.-3 is not an eye witness of the occurrence. As such, no benefit can be derived by prosecution from the deposition of P.W.-3.
35. With reference to the depositions of P.W.-1. P.W.-2 and P.W.-4, learned A.G.A. submitted that depositions of aforementioned witnesses are relevant regarding the manner of occurrence. Since aforementioned prosecution witnesses of fact are alleged to be eye-witnesses of the occurrence, therefore, the basic manner of occurrence ought to remain the same in their respective depositions. Court below upon conjoint reading of the depositions of aforesaid 3 prosecution witnesses has observed that there is inconsistency in the deposition of these prosecution witnesses regarding the manner of occurrence. As such, the prosecution has failed to establish the manner of occurrence conclusively.
36. Learned A.G.A. vehemently urged that since present case is a case of direct evidence, therefore, there was strong burden upon prosecution to establish the place of occurrence. Only when the place of occurrence was convincingly established by the prosecution, could the prosecution evidence regarding the manner of occurrence be relevant. It is on account of above that court below has examined the prosecution evidence on the aforesaid point threadbare and therefore, returned a finding that prosecution has been changing the place of occurrence at different stages of the proceedings.
37. In the light of above, the learned A.G.A. thus vehemently urged that once prosecution failed to establish the place of occurrence itself then the entire prosecution evidence shall fall like a house of cards as the evidence regarding the manner of occurrence will become illusionary and meaningless.
38. In continuation of his opposition to the present appeal, the learned A.G.A. invited the attention of Court to the medical evidence on record. With reference to same, the learned A.G.A. urged that the same does not support the ocular version of the occurrence or the prosecution case does not stand corroborated by the same.
39. In addition to above, the learned A.G.A. further contended that it is not the case of the prosecution that the accused knew that deceased is a heart patient and inspite of above they indulged in committing the crime in question. No attempt was made by the prosecution to lead evidence in this regard.
40. Regarding the prosecution case that deceased died on account of an act of accused, the learned A.G.A. invited the attention of Court to the deposition of Autopsy Surgeon i.e. PW-6 Dr. Gopi Lal, which has been dealt with by Court below in paragraph-25 of the impugned judgment. The Autopsy Surgeon has clearly stated that only one anti-mortem injury was found on the body of deceased, which is a scratch on the left side of the face and the same could not be fatal. According to the Autopsy Surgeon, the death of deceased could have occurred on account of cardiac arrest. It is thus evident that the cause of death of deceased Akhtar is not directly attributable to an act of accused. Learned A.G.A. then referred to the deposition of PW-10 Dr. Mohit Gupta, who in his examination-in-chief has categorically stated that the injury sustained by injured could not have been caused by the throw of a brick piece.
41. It was lastly contended by the learned A.G.A. that the prosecution witnesses have not remained consistent regarding the place of occurrence as well as the manner of occurrence. Thus the prosecution itself is not definite about the very story which it set out to prove. In such a lucid stage, it cannot be said that the guilt of accused stands proved beyond doubt much less a reasonable doubt.
42. Court below has therefore, not committed any illegality in acquitting the accused. The impugned judgment is, therefore, not liable to be interfered with. As such, the present appeal be dismissed.
43. We have considered the rival submissions.
44. Having heard the learned counsel for appellant, the learned A.G.A. for State-opposite party-1 and upon evaluation of record in the light of the submissions urged by the learned counsel for the parties, we find that the following two questions require consideration by us in this appeal.
(i). Whether the prosecution has specifically discharged it’s burden to establish the place of occurrence?
(ii). Whether the oral evidence adduced by the prosecution and the medical evidence on record establish the manner of occurrence alleged by the prosecution.
45. Before proceeding to answer the aforesaid questions, it shall be useful to note the reasons recorded by Court below for acquitting the accused/adverse inferences emerging in the prosecution case as noticed by court below;-
(i). In the occurrence giving rise to present criminal proceedings one person namely Akhtar died. However as per the post-mortem report of deceased (EXT-KA-4) the deceased had sustained only 1 injury on his person i.e a scratch on his cheek. In the opinion of autopsy surgeon PW-6 the deceased could have died because of cardiac arrest.
(ii). PW-1 Zafar and PW-4 Muzaffar sustained injuries on their person. However in the opinion of the doctor PW-10, who had examined the injured Muzaffar the injuries sustained by aforesaid injured could have been caused by falling on the path. Injured Zafar could have sustained injury no.-1 either by colliding with a metallic surface or with a wall. Injury No. 2 sustained by Zafar could have been caused by friction i.e. either by colliding with a solid object or by falling on a solid ground.
(iii). On the above medical evidence Court below concluded that the medical evidence on record does not support the prosecution case or in other words the ocular version of the occurrence is not corroborated by the medical evidence on record.
(iv). Though P.W.3 Bilal was introduced as an eye-witness. However upon examination of his evidence, it is apparent that he is not an eye-witness of the occurrence as this witness could not have seen the occurrence from his house.
(v). PW1, PW2, and PW3 who are eye witnesses of the occurrence have not disclosed the place of occurrence in their respective statements-in-chief.
(vi). PW-1 Zafar in his examination-in-chief has stated that accused Ayyub is his Mama (Maternal uncle). The walls of their houses are adjacent to each other. There is enmity due to land dispute. The disputed land is in possession of accused. However no injury was caused by accused on account of land dispute. However in the later part of his deposition this witness has deposed that there is no relationship between accused Ayyub and Suleman.
(vii) While PW-1 Zafar in his examination in chief has stated that the deceased was assaulted by Ayyub (i.e. throwing a piece of brick on his chest). PW-2 Mahira has stated that all the accused assaulted the deceased by throwing bricks on his chest.
(viii) According to PW-2 Mahira, all the accused pelted stones from there house in the house of deceased which struck the deceased and the two injured. However, PW-4 Muzaffar who is an injured witness has stated that at the time of pelting they were present in the house of accused. As such there is contradiction in the depositions of PW-2 and PW-4 regarding the place of occurrence. Prima facie, the presence of PW-4 appears to be doubtful at the place of occurrence.
(ix) PW-8 the investigating officer in his deposition before Court below has stated that no stones or bricks were found in the house of first informant, nor any memo of recovery of same was made. This makes the prosecution story doubtful.
(x) None of the prosecution witness has deposed before Court below that before the arrival of police, the place of occurrence was cleaned or the bricks and stones lying near the place of occurrence or at the place of occurrence were removed.
(xi) As per the Site plan EX-KA-1, the place of occurrence was shown in the house of accused Ayyub. In the house of accused Ayyub a block of brick is shown in the site plan. 'X' mark in the map is the place where the deceased sustained the assault of brick on his chest when he went to mediate between the parties. The site plan was prepared on 14-01-2025. As per above the deceased sustained the blow of bricks in the house of accused Ayyub; whereas it is the case of the prosecution that the accused pelted stones from their house in the house of deceased which struck the deceased.
(xii) As per the panchayatnama/inquest report the dead body of deceased was kept in the house of Parvez S/o Jumman, whereas in the site plan the dead body of deceased was shown to be kept in the house of accused Akhtar. The house of Jumman is shown to be towards the south of the house of accused Ayyub. As per the deposition of PW-1, PW-2 and PW-3, the stones/bricks were pelted by the accused from their houses which struck the deceased on his chest resulting in his death. According to PW-8 the Investigating Officer, when he reached the the place of occurrence, the dead body of deceased was lying in his house. It is thus established that prosecution has changed the place of death of deceased to three different places:
① House of Jumman ② House of accused Ayyub ③ House of first informant. It can thus easily be inferred that prosecution has changed the place of occurrence at different stages of the proceedings.
46. Having heard learned counsel for the parties and upon evaluation of record in the light of submissions urged by the learned counsel for the parties and the reasons recorded by court below we proceed to to answer the issues involved in present appeal.
47. We shall take up the first question first.
48. The answer to the first question shall reveal the true picture of prosecution case. It is only when the place of occurrence is established by the prosecution that prosecution evidence regarding the manner of occurrence shall be relevant. Court below upon evaluation of prosecution evidence has returned a finding that the prosecution has not remained firm and consistent regarding the place of occurrence. Admittedly, present case is a case based on direct evidence. No doubt, there can be minor variations in the statements of witnesses regarding the place of occurrence but by and large the basic deposition shall remain the same. However, in the present case, there are 3 prosecution witnesses of fact i.e. PW-1, PW-2 & PW-4. PW-1 and PW-4 are injured witnesses, whereas PW-3 is the sister of PW-1 and PW-4. As per the deposition of PW-2, the injured PW-1, PW-4 and the deceased had not climbed to the rooftop of the house. The deceased and the injured sustained injuries on account of stone pelting by the accused from their house in the house of PW-1, PW-2 and PW-3. However, PW-4 in his deposition had stated that injured and deceased were at the house of accused Ayyub at the time stone pelting was committed. However, Court below upon evaluation of the deposition of PW-4 has doubted his presence at the place of occurrence in view of the deposition of PW-2 Mahira, who is the sister of PW-4 and PW-1. Another contradictory circumstance which has emerged in the prosecution case regarding the place of death of deceased is that as per the panchayatnama/inquest report, the dead body of deceased was kept in the house of Parvez son of Jumman and was lying on a cot. How the dead body of deceased reached aforesaid place has not been explained by the prosecution. As per site plan, Ext-Ka-12, the dead body of deceased was lying in the house of Ayyub. As per the statement of PW-8, Inspector Om Prakash when he visited the place of occurrence, the dead body of deceased was lying in his house. This fluctuating position has not been explained by the prosecution and remains a mystery. It is on account of above that Court below has recorded a finding that prosecution has changed the place of death of deceased at different stages of proceedings. When a parallel is drawn between aforementioned adverse circumstances and the depositions of prosecution witnesses regarding place of occurrence, the inescapable conclusion is that prosecution has miserably failed to conclusively establish the place of occurrence.
49. In view of our answer to the first question that prosecution has failed to establish the place of occurrence, the second question involved in the present appeal i.e. whether the prosecution has proved the manner of occurrence does not survive for adjudication.
50. At the time of hearing of present appeal, we specifically pointed out the aforesaid anomalies emerging in the prosecution case as well as the reasons recorded by Court below in support of the acquittal awarded to accused. We further requested the learned counsel for appellant to explain as to how on account of the same, the impugned judgment can still be set aside in the light of submissions urged by him.
51. When confronted with above, the learned counsel for appellant simply reiterated the submissions previously urged by him but with much adour.
52. It is thus evident that Court below has acquitted the accused on the ground that prosecution has not been able to conclusively establish the place of occurrence. The prosecution has changed the place of occurrence at different stages of proceedings. Secondly, as the place of occurrence has changed like the shifting sands of time, the prosecution story regarding manner of occurrence is also inconsistent and unconvincing. Furthermore, once the place of occurrence itself has not been established by the prosecution, the evidence adduced by the prosecution regarding the manner of occurrence is of no relevance.
53. In this background, it cannot be said that Court below has erred in granting acquittal to accused. However, being the last Court of fact, we have carefully examined the impugned judgment to find out ourselves as to whether Court below has either omitted to consider any relevant evidence or has misconstrued any evidence on record. There is nothing in the impugned judgment, which may reflect either of the aforesaid contingencies. Thus the conclusion drawn by Court below is the only possible conclusion, which could have been deduced in the facts and circumstances of the case.
54. As a result of the aforesaid discussion, the present appeal fails and is liable to be dismissed.
55. It is, accordingly, dismissed.
