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Judgment
Bela M. Trivedi, J
The present appeal has been filed by the appellant â€" State under Section 378(1) of Cr.P.C. challenging the judgment and order dated 31.12.2018
passed by the Principal Sessions Judge, Navsari (hereinafter referred to as 'the Sessions Court') in Sessions Case No. 49 of 2012, whereby the
Sessions Court has acquitted the respondent â€" accused from the charges levelled against him under Section 328, 342, 379, 394 read with section 114
of IPC.
The case of the prosecution in nutshell before the Sessions Court was that on 27.08.2008 at about 9:15 hours, when the complainant Abdullabhai
Aamanbhai Meman was standing opposite Navsari Sahkari Petrol Pump with his tempo bearing No. GJ-21-T-5646, two unknown persons came to
him and requested to give the tempo on rental basis as they wanted to bring some miscellaneous articles from Surat Katargam to Vijalpor, Shivaji
Chowk. The complainant therefore fixed the transportation charges as Rs. 800/- and proceeded towards Katargam, Surat, along with the said two
persons, who had taken their seats in cabin besides the complainant. When they arrived at Surat, Katargam Mahanagar Palika Office, Near Garden
Gate, at about 10:30 hours, one of the said two persons asked the complainant to stop the tempo as he wanted to get a key from his apartment. After
ten minutes, the said persons came with tea in a plastic bag with plastic glass and offered tea to the complainant. As per further case of the
prosecution, after consuming the said tea, the complainant had become unconscious and was taken to Navsari Aaradhana Hospital, where he gained
his consciousness on 28.08.2008. His wife Nagmabanu was thereafter informed and the complainant was taken to Navsari from Vadadora by his
brother Hanifbhai. According to the prosecution, the said two persons had mixed some intoxicant drug in the tea offered to the complainant, as a result
of which the complainant had become unconscious, and thereafter they had committed robbery of the tempo worth Rs. 3 lacs and also a mobile of
Nokia company with sim card bearing No. 9879199636 and also committed robbery of Rs. 3,000/-.
The prosecution to prove the charge levelled against the respondent â€" accused had examined as many as eight witnesses, out of which the
complainant Abdullabhai Aamanbhai Meman was examined as PW-1, his wife Nagma Abdulla was examined as PW-2, the Executive Magistrate
Sureshbhai Gamit was examined as PW-3. Now, as transpiring from the evidence of the complainant, he did not know the accused prior to the date of
incidence. Though the complainant had supported the case of prosecution as regards the alleged incident, he had stated inter alia that when he was
taken to office of the Executive Magistrate for the purpose of test identification parade to identify the accused, he was shown the photograph of the
accused before the said test identification parade was conducted. Under the circumstances, very evidence of the test identification parade has
become doubtful. It is also pertinent to note that the prosecution had also failed to examine the concerned panch witnesses, in whose presence the test
identification parade was conducted. Hence, it is difficult to rely upon the proceedings of the T.I. Parade conducted before the Executive Magistrate.
The complainant who was medically examined by PW-5 Dr. Bhadresh Dinkarbhai Nayak, had also given history to the said Doctor that he was
beaten by some unknown persons. The Sessions Court had also found major contradictions in the evidence of the complainant himself as regards the
place of incident and the manner in which the alleged incident had taken place. The wife of the complainant had no personal knowledge about the
alleged incident and she came to know about the same through the complainant. It appears that no incriminating evidence was found against the
respondent â€" accused during the course of investigation. The Sessions Court therefore after considering the said evidence of the prosecution
witnesses, has acquitted the respondent from the charges levelled against him.
Though the learned Ms. Maithili D. Mehta appearing for the appellant â€" State has sought to submit that the Sessions Court had failed to
appreciate the evidence in the right perspective, she is not in position to state as to how the findings recorded by the Sessions Court could be said to be
perverse findings, requiring interference by this Court. In absence of any cogent evidence on record, the Sessions Court has rightly acquitted the
respondent â€" accused from the charges levelled against him. It is needless to say that the suspicion, no matter how strong, cannot and must not be
permitted to take place of proof, and the prosecution has to prove the charges beyond reasonable doubt, which the prosecution has failed to do so in
the instant case. At this juncture, the observations made by the Supreme Court in the case of Rajkumar Singh alias Raju alias Batya versus State of
Rajasthan reported in (2013) 5 SCC 722, are reproduced as under : -
“21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be’
proved and `will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for
the reason, that the mental distance between `may be’ and `must be’ is quite large and divides vague conjectures from sure conclusions. In a
criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may
be’ true and `must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an
accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may
be’ true and `must be’ true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality
and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a
case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely
probable doubt, but a fair doubt that is based upon reason and common sense.â€
In that view of the matter, application for leave to appeal is not granted and is dismissed. As a result thereof the Criminal Appeal being sans merit is
also dismissed in limine. The judgment and order dated 31.12.2018 passed by the Chief Sessions Judge, Navsari in Sessions Case No. 49 of 2012 is
hereby confirmed accordingly.