THE STATE OF GUJARAT vs GAUTAMKUMAR DEVJIBHAI RATHOD

The state has filed an appeal under Section 378(1)(3) of the

Code of Criminal Procedure feeling aggrieved by the order of

acquittal dated 31.01.2006 passed by the learned Additional

Sessions Judge, Fast Track Court No. 5, Bharuch in Sessions

Case No.99 of 2002 whereby the respondent accused came to be

acquitted for the offences punishable under Sections 364(a),365,

368, 341, 342, 343, 346, 397, 120B of the Indian Penal Code

read with Sections Section 25(1) (b), 25(2) (1-A), 25(2) (1-AA) and

under Section 29 of the Arms Act.

The background on which the present appeal is filed is that

on 15.07.1997 as per the case of the prosecution, original

accused nos, 1, 2, 3, 4 and 5 in conspiracy to each other has

illegally abducted the son of the complainant named - Manish

with a view to get some undue advantage and for ransom and to

give ultimate outcome, committed the offence by abducting the

son of the complainant. A complaint came to be lodged by one

Bhupendra Prabhulal Shah before the Ankleshwar Police Station

on the premise and by alleging that the complainant a resident

of Kusumharwadi, opposite to Navi Nagri, Ankleshwar is having

business of ''Shroff and Computer Shop'' (as a financier). The

complainant is having one son named Manish aged about 28

years and one daughter named Krina, who has already got

married in the year 1988 and residing at Mumbai, whereas his

son Manish got married in the year 1995 at Nadiad with a

daughter of Bipinchandra Pranlal Shah named as Binta and out

of the wedlock there is one daughter named Hetvi aged about

one year. With all these family members, the complainant is

residing at Ankleshwar and running a business of financier in

the name of M.P. Shroff at Chauta Bazar and in the name of

Shroff Information and Technology Private Limited. Business of

selling computer and programming is also being undertaken,

which practically is run by son Manish along with one Jigar

Shah, Minesh Jani, Ilyaisbhai, Shhabirbhai Rangwala of

Bharuch. The routine of his son Manish was that in the

morning he is going and attending his shop, at around 2:30 after

taking lunch, he is again going back to the shop and after 7:00

pm returning home after closing the shop. Lastly, on

16.07.1999. when son Manish of the complainant went to drop

one Bhavin Dave after 7:00 pm after closing of his shop in a

Maruti Car bearing registration no. GJ-1-16-C-9992, Manish

did not returned to home and about 8:20 pm at night, a phone

call came, which was attended by wife of the complainant, in

which Manish has stated that he has to take the dinner at hotel.

Again around 10:10 pm in the night, a phone call was made by

Manish which was attended by the complainant. in which,

Manish has conveyed that he has been abducted and someone

took the phone from the hands of the Manish and conveyed that

they have taken Manish and will talk again after about one hour.

Later on after about half an hour, around 10:30 pm, some phone

call came to be received, in which there was a demand of Rs. 1

''Khoka" ie. Rs.1 Crores. It was deliberated, that there is no

capacity to pay. Therefore, they reduced the amount to Rs.50

lakhs. Even that was also not there and, therefore, it was

conveyed that no less amount will be tolerated and they will

again call in the next day morning. It is further the case of the

complainant in his complaint that on the next day i.e.

16.07.1997 at about 9:00 am in the morning a phone call was

received, inquiring about the money. Resultantly, it was

conveyed by the complainant that Rs.5 - 7 lakhs can be

managed and there is ''Gujarat Bandh'' on account of which the

banks are also closed and therefore, conveyed that beyond

Rs.10/- lakhs (10 petis), nothing is possible to be managed and,

therefore, by abusive language a threat was administered that

less than Rs.50 lakhs will not be acceptable and in that case,

Manish i.e. the son of the complainant will be done away. Again

at around 10:00 o''clock, a further phone call came to be

received, in which the said threat was reiterated and demanded

Rs.50/- lakhs. Again a phone call was repeated and then

conveyed that on the next day, at around 12:00 o''clock, they

will talk again and thereafter, when the phone was given to

Manish, Manish has conveyed that anything troublesome can

taken place with him and then after some deliberations, the

phone was put-up Thereafter on 17.01.1997 at around 1:00

o''clock in the noon, it was conveyed that whether the amount is

ready or not and the same was conveyed to the complainant in

gujarati language wherein it was informed that the amount is

ready and then the Manish had a talk with his mother as well.

Again at 2:00 pm the phone call to be received in which it was

conveyed that come to Narol chowkdi and go to the right side of

the Himmatnagar and after going to Indira Bridge, near Koba

Patia, a person will raise his hand and handover the bag

consisting of money. Thereafter, an assertion has taken place

further in which, when they reached at Koba circle at around

quarter to ten pm, no person was standing and despite the fact

that upto 12:30 pm in the night, the complainant and other

person waited, but nobody turned and then came back. On

18.07.1997 at around 9:00 o''clock in the morning again a phone

call came and again deliberation took place and called at a place

and at that time, three persons came out from one Blue colour

Cielo Car or Thousand and one person who was driving the car

dragged out the driver of the Maruti car and then two other

persons entered and gouge the person''s mouth, who was driving

Maruti Car and thereafter both the cars in a speed went ahead

over the bridge. It is further asserted that one person driving a

moped belonging to Bharwad community has seen this incident

and these circumstance are brought to the notice of son and

daughter of one Aayubbhai. When the daughter of Aayubbhai

was shown the photographs of some of the persons who were

arraigned in such previous offence, out of which one Kamlesh

Barot, Gautam Ramanuj were identified, Since this was the

circumstance happened with the complainant and the accused

persons have taken away and abducted son for ransom and

huge amount of Rs.50/- lakhs and detained illegally, took him to

various places, and thereby have committed serious offence, as a

result of which a complaint came to be lodged before the

Ankleshwar Police Station.

The Investigating Officer on receipt of the complaint has

registered a complaint under Sections 364(a), 365, 341, 342,

343, 346, 397, 120B, 34, 114 of the Indian Penal Code and

Sections 25(1), 25(1-A) and 25 (1-AA) along with Sections 25(2),

25(3), 29 and 35 of the Arms Act. On finding prima facie material

upon conducting the investigation at length, the Investigating

Officer has submitted a charge sheet before the learned Judicial

Magistrate, First Class, at Ankleshwar as against as many as 11

accused persons. For the aforesaid main accused, later on

additional charge sheet has also been submitted. Some of the

accused persons were arrested and some were about to be

arrested, but then since there was no jurisdiction to try the case

with the learned Judicial Magistrate, First Class, Ankleshwar,

upon verifying the papers in exercise of jurisdiction under

Section 209 of the Code of Criminal Procedure, a case was

committed to the Sessions Court for onwards trial and then the

same was registered as Sessions Case No. 99 of 2002.

After committal of case, the case came up for consideration

before the learned Additional Sessions Judge, Fast Track Court

No. 5, Bharuch who vide Exhibit-3 has framed the charge in

December, 2002 and the same was read over to the respondent

accused and plea was recorded at Exhibit-4 wherein, it was

conveyed that no offence is committed by him. After denial of

offence, a case was put up for adjudication further in which an

opportunity was given to the prosecution to lead the evidence

whereby the prosecution has examined as many as 14 witnesses

and adduced 22 documentary evidences and thereby oral as well

as documentary evidence was lead by the prosecution after

which the closure purshis was given. With a view to give an

opportunity further, the statement was recorded under Section

313 of the Code of Criminal Procedure in which again the

respondent accused has denied the offence being committed and

claimed to be tried, as a result of which, the prosecution has

made an attempt to prove the case against the accused. It

appears that after considering oral as well as documentary

evidence and after hearing at length both the sides, the learned

Additional Sessions Judge, Fast Track Court No.5, Bharuch was

pleased to pass an order of acquittal in favour of the respondent

accused herein and has relieved the respondent from the

charges for the offences which were tried and it is this judgment

and order of acquittal made the subject matter of present

criminal appeal before this Court.

It appears from the record that this appeal has been

admitted on 13.03.2008 and thereafter, the appeal was taken

up for hearing in which along with the other sets of appeal, a

decision was delivered by the Division Bench of this Court on

21.01.2009 by virtue of which, in respect of present respondent

accused, an order of acquittal is set at naught and convicted the

respondent in connection with the offence alleged and sentence

him to undergo imprisonment for life, as a result of which, the

present respondent approach the Apex Court wherein, after

disposing of the appeal of the respondent which was numbered

as Criminal Appeal No. 1125 of 2009, the matter was remanded

to the High Court for fresh hearing and disposal, in accordance

with law, keeping in view the observations made by the Apex

Court with regard to the present respondent. This order was

passed by the Apex Court in respect of the present respondent

as a result of which the present criminal appeal was again put

up for final hearing in which, the record indicates that on

16.12.2014, the Division Bench of this Court was pleased to

issue notice for final hearing on the respondent accused

pursuant to the remand order passed by the Apex Court. In view

of the aforesaid background, fresh hearing was ordered and the

present criminal appeal is put up for final disposal before this

Court.

Mr. Hardik Soni, learned APP has represented the State

whereas, learned Senior Advocate Mr. J.M. Panchal is appearing

with learned advocate Mr. Jayesh Dave representing the

respondent-accused.

Mr. Hardik Soni, learned APP has vehemently contended

that the order of acquittal is not justified at all in such kind of

serious offence, more particularly, when the role of the

respondent is unequivocally established on record. Mr. Soni,

learned APP has further contended that even the Apex Court

having found that there is some material against the respondent

accused, the case deserves to be adjudicated, as a result of

which, instead of granting benefit at that stage, the matter has

been remanded to the High Court for fresh consideration and,

therefore, also even the Apex Court has found adequate material

by virtue of which the order of remand is passed and, therefore,

in view of this peculiar set of circumstance, the order of acquittal

is not justified in the eye of law. It has also been contended by

Mr. Soni, learned APP that during the course of investigation,

there is a serious offence of ransom so far as the present

respondent accused is concerned, and overwhelmingly the

evidence has come up on record which establishes beyond

reasonable doubt the role played by him and, therefore,

considering the language and the object of Section 364(A) and

Section 120B of the Indian Penal Code, the order of acquittal

deserves to be reversed in the present proceedings. It has also

been contended that sequence of evidence has been established

by the prosecution against the respondent accused and

therefore, it cannot be said in any way that the order of acquittal

is justified. It has been pointed out by Mr. Soni, learned APP that

on 15.07.1999, the victim namely Manish, son of the

complainant was kidnapped and detained upto 19.07.1997 and

in pursuance of the First Information Report dated 18.07.1997,

the investigation was handed over to the Police Inspector Mr.

Jayendrasinh Jhala whose testimony is clearly indicating the

role of the present respondent accused. It has been pointed out

and contended that there was a recording of the pager

message/communication which took place inter se between the

accused persons and the service provider company has also

issued a certificate in that regard which is reflecting from the

deposition of various officers of the Company, as well as Exhibit-

93 is justifying that the case has been made out against the

respondent. It is further contended that the testimony of the

Police Officer namely Mr. Jayendrasinh Jhala, is indicating that

the statement of the Manager was not only recorded, but one

Chetanbhai Lakhabhai, serving as a Manager in R.P.G. Paging

Company has also deposed before the Court and, therefore, the

evidence collected can be relied upon under Section 33 of the

Evidence Act.

7.1. Mr. Soni, learned APP has further contended that on

30.07.1997 at the instance of the respondent accused, a foreign

made pistol came to be discovered and the said pistol was sent

to FSL and it was found that it was found to be in working

condition. The discovery panchanama which was drawn during

the course of the investigation has been supported by the panch

witness namely Kiranbhai Rameshchandra Choksi which is

reflecting at page 1279 of the paper book compilation and by

referring to this Exhibit-61, Mr. Soni, learned APP has contended

that more than adequate material to establish the guilt of the

respondent accused is emerging from the record and, therefore,

the order of acquittal is passed by the perverse findings and

therefore, the order deserves to be corrected.

7.2. Mr. Soni, learned APP has further pointed out that the

respondent accused came to be arrested on 18.07.1997 and at

the time of arrest, the respondent was occupying unnumbered

''Cielo Car'' and the description of the said car is already

mentioned in the First Information Report by the complainant. It

was noticed and pointed out during the course of trial not only

by police officers, but by the victim himself, who is the eye

witness to the incident about the use of this unnumbered car for

the purpose of kidnapping and, therefore, the use of the car,

discovery of pistol has been sufficiently been believed by the

prosecution. It has also been contended that at the time when

the respondent accused was arrested not only foreign made

pistol was recovered but there was also a pager and the

automatic carbine gun in his possession. So far as pager is

concerned, the brother of the accused P.W.- 4 i.e. Girdharbhai

Devjibhai Rathod has deposed before the Court which is

reflecting at page 109 of the compilation that he had purchased

the said pager and, therefore, there is a direct nexus in

commission of crime by the respondent accused.

7.3. Mr. Soni, learned APP has further pointed out from the

panchnama that the ''Cielo Car'' was not claimed by anybody

during the course of the trial, never demanded by any other

person, which would go against the respondent accused as it is a

direct circumstance connecting the accused with the commission

of crime. Mr. Soni has further pointed out that this respondent

accused is not only responsible for the commission of present

crime, but is having the history behind him. In the year 1987,

he was arrested in connection with the murder of the person

while absconding from the judicial custody in connection with

other offence, and the present crime for ransom is committed.

For the purpose of murder, offence under Section 302 of Indian

Penal Code in Sessions Case No.127 of 1989 is very much

pending and, therefore, once again has jumped the bail and was

arrested on 02.09.2000 and, therefore, the conduct of the

respondent accused is also not to be unnoticed by this Court

while dealing with the evidence of the present case. The accused

being criminal minded person to be viewed seriously.

7.4. It has also been contended by Mr. Soni, learned APP that

the panchnamas drawn during the course of the investigation

have been relied upon during the course of trial and, therefore,

even if the panchas have turned hostile, they have not disputed

their signature and this panchnama in question have been

proved through the testimony of the police witness and for that

purpose reference is given by the decision delivered by this Court

in the case of Jagdishsinh @ Munno Ranjitsinh @ Ranubha

Jadeja v. State of Gujarat reported in 2016 (4) GLR 3122,

2012 (3) GLR 350 and 2012(4) GLR 722. Mr. Soni, learned APP

has further contended that it is a settled position of law that the

statement of witnesses who has been examined in earlier round

of proceedings, can be considered by virtue of fact of Section 33

of the Evidence Act and that is validly been laid down by the

Apex Court in the case of Nirmal Singh v. State of Haryana

reported in (2000) 4 SCC 41.

7.5. Mr. Soni, learned APP has further pointed out that so far

as offence pertaining to Arms Act is concerned, power of Section

39 of the Arms Act is applicable only to offences punishable

under Section 3 of the Arms Act, whereas, in the present case,

the weapons are automated machine carbine gun and hence, the

same is punishable under Section 7 of the Arms Act. Thus,

power under Section 39 of the Arms Act is not applicable to the

case of the respondent accused and, therefore, considering this

set of circumstance, Mr. Soni, learned APP has contended that

erroneous approach is made by the learned Judge in evaluating

and analyzing the evidence on record. Mr. Soni, learned APP has

further contended that there is no allegation of any nature with

regard to biasness of any Police Officer. There is no animosity

alleged nor mala fide is even asserted at any point of time and,

therefore, when, automatic machine carbine gun, ''Cielo car'' has

been found on 16.07.1997, there is no reason or any force to

implicate the present respondent accused in present crime and,

therefore, Mr. Soni, learned APP has submitted that there is

adequate material to hold the respondent accused guilty of

offence as alleged.

7.6. Mr. Soni, learned APP has further pointed out that with

respect to identification of accused, the victim has specifically

identified the respondent. The victim is examined as prosecution

witness - PW-2 whose testimony is reflecting at page 101 of the

paper book compilation which clearly indicates that he has

identified specifically the present respondent. Considering the

fact that there is a serious charge of conspiracy in it, original

accused no. 2 called present respondent accused who is accused

no. 6 who came in a ''Cielo car'' with carbine gun and has

specifically reveal the live link between the accused persons

inter-se. However by virtue of order dated 25.04.2014, even the

conviction of other accused is upheld by the Apex Court and,

therefore, there is no reason justifiable of any nature to allow

such order of acquittal when on the face of it live link is

established of the respondent accused with crime. Mr. Soni,

learned APP has further pointed out that on conjoint reading of

the entire evidence as a whole, is clearly indicating that the

respondent accused is not an innocent person and it may not be

possible to infer safely the innocence of the respondent accused

and by referring to this contention, Mr. Soni, learned APP has

requested the Court not to allow such order to be sustained in

the eye of law.

7.7. Mr. Soni, learned APP has further stated that some of the

documents in which tentative exhibition number is given that

would not deprive the prosecution to consider and rely upon

such documents, more particularly, Exhibit-93. Mr. Soni,

learned APP has pointed out that a serious offence of conspiracy

is alleged and it is not simplicitor case of possession of arms in

violation of the provisions of the Arms Act, on the contrary, one

of the witnesses have identified the car and simply because the

colour of the car is not descriptive, it is not possible to divulge

the attention of respondent accused from the offence. It has also

been pointed out that the discovery is specifically at the instance

of the respondent and a clear identification has taken place of

pager, carbine gun and the Car were stated to be with the

respondent accused and there is a sufficient material to connect

the respondent accused with commission of crime. It was hardly

any justifiable reason to grant the benefit of acquittal to the

respondent accused. It has been pointed out that when such

kind of material was produced before the Court and when the

incriminating circumstance were produced before him for further

explanation, it was the duty on the part of the respondent

accused to explain even in further statement recorded under

Section 313 of the Code of Criminal Procedure. The very object of

Section 313 of the Code of Criminal Procedure is to grant a fair

opportunity to the respondent accused and, therefore, it is not

simply the duty of the prosecution to establish the case beyond

reasonable doubt, but it is also the corresponding duty of the

respondent accused to explain conjointly the circumstance put

before him under Section 313 of the Code of Criminal Procedure

and having failed to discharge his duty by not tendering the

cogent explanation in consonance, which has been presumed by

the learned Judge, is not justifiable in the eye of law and for that

purpose, Mr. Soni learned APP has relied upon the decision of

the Apex Court in the case of Munish Mubar v. State of

Haryana reported in (2012) 10 SCC 464.

7.8. So far as the issue related to sanction is concerned, Mr.

Soni, learned APP has stated that the sanction is required only

with respect to the offence under Section 3 of the Arms Act,

whereas, here no such requirement is visible and alternatively

Mr. Soni, learned APP has stated that such change or the lapse

even if more may be treated as fatal to the prosecution and,

therefore, since the learned Judge has misdirected himself in

evaluating the evidence on record and has erroneously come to

the conclusion of innocence of the respondent accused such

perverse order deserves to be set at naught. Mr. Soni, learned

APP has submitted that it is a settled position of law by a series

of decisions that no doubt the revisionary jurisdiction of this

Court while dealing with the acquittal appeal is circumscribe but

that does not mean that in no case the order of acquittal is not

to be reversed. Here in the present case where there reflects

perversity in the conclusion arrived at by the learned Judge and

the conclusion has resulted into miscarriage of justice, in such

eventuality, the Apex Court may kindly interfere and reverse the

findings of the order of acquittal and impose appropriate

sentence upon the respondent by passing the order of conviction

and therefore, by submitting the aforesaid contention, ultimately

the request is made to set aside the order of acquittal and allow

the appeal filed by the State by imposing appropriate reasonable

punishment. No other submissions have been made.

To contradict the stand taken by learned APP Mr. Soni,

learned Senior Advocate Mr. J.M. Panchal appearing with Mr.

Jayesh Dave, learned advocate representing the respondent

accused has vehemently contended that in due discharging the

statutory functions, the jurisdiction is exercised by the learned

Judge in passing the order of acquittal which is well within the

scope of jurisdiction and to justify the order of acquittal

appropriate reasons are assigned which are valid reasons and

cannot be set at naught while dealing with the order of acquittal.

It is settled position of law that even if another view is possible,

in absence of any perversity or material illegality, substitution of

view is not permissible and is well defined by now in a series of

decisions by Apex Court and, therefore, keeping this peripheral

limit of exercising jurisdiction while dealing with the order of

acquittal, Mr. Panchal, learned Senior Advocate has vehemently

submitted that even apart from the this, the evidence as a whole

if to be read, it would be quite clear that prosecution has

miserably failed in proving the case against the respondent

accused beyond reasonable doubt. A duty is cast upon the

prosecution to establish the case beyond reasonable doubt, and

that duty appears to have not been performed at all in the

present case. For the purpose of establishing this point, Mr.

Panchal, learned Senior Advocate has taken the Court to

various testimonies of the prosecution witnesses and out of the

same, some of the very relevant testimonies have been pressed

into service and analyzed and contended that no case is made

out.

8.1. Mr. Panchal, learned Senior Advocate has submitted that

the prosecution has examined as many as 14 witnesses to

establish the guilt of the respondent accused, but the main

material witnesses which are examined by the prosecution if to

be analyzed, no case is made out. On such submission, Mr.

Panchal, learned Senior Advocate has submitted that so far as

prosecution witness - PW - 1 i.e. Bhupendrabhai Prabhulal

Shah who is mentioned at Exhibit-43 page 20 who is the

complainant has though asserted against the respondent, his

testimony is not establishing in any manner, the case against

the respondent. First of all, he is not an eye witness to the

incident in question, He has also not having the personal

knowledge about the incident and according to his testimony, it

clearly appears that he has obtained information from the other

persons and, therefore, his evidence is directly in nature a

hearsay evidence on the basis of which, no order of conviction

can be passed. In any case, a close reading of his testimony i.e.

PW-1 at Exhibit-43 is not involving the present respondent

accused though alleged offence, as is visible. Mr. Panchal,

learned Senior Advocate has further drawn attention of this

Court to the testimony of the prosecution witness - PW- 2 who is

not only the prosecution witness, but the victim as well, whose

deposition is recorded at Exhibit-46 reflecting at page 101 of the

paper book compilation. So far as his evidence is concerned,

this material witness has stated that he was kidnapped in a

''Cielo Car'', but this witness has not given any description of that

''Cielo Car''. The said witness has not even given colour of car

though the ''Cielo Car'' was in custody of police i.e. the

investigating agency. There is no panchnama of identification of

the ''Cielo Car'' and, therefore, even during the course of

examination before the Court of this witness, no attempt was

made by the prosecution of getting the ''Cielo Car'' to be identified

through this witness. Therefore, the basic identification of ''Cielo

Car'' is not established by the prosecution through his material

witness who is not only the eye witness, but the victim of the

incident in question. So far as other part of his testimony, there

appears to be no explanation either by the prosecution as to why

''Ceilo Car'' was not identified through this witness. Even the

involvement of the present accused is not alleged by this witness

so far the offence of kidnapping is concerned, no specific role is

attributed upon the respondent accused even after kidnapping

by other accused persons. This is so, despite the fact that the

victim was detained right from 15.07.1997 to 19.07.1997 and,

therefore, so far as the present respondent accused is concerned,

there is no adequate material of any nature which would connect

the respondent accused with the commission of crime. Even the

evidence suggest that after his release, his custody was given to

his relative on 19.07.1997 and not to the complainant. It is the

case of this witness in deposition that he was brought to the

''Divya Apartment'' on 20.07.1997 and at that point of time, he

has seen the present accused for the first time in ''Divya

Apartment'' along with other accused persons and, therefore it is

not undisputable as to why this witness is brought at ''Divya

Apartment'''' and there appears to be no explanation in the said

connection.

8.2. Mr. Panchal, learned Senior Advocate has further

submitted that yet another circumstance which is taken note of

is that the test identification parade of the accused person was

held by the investigating agency, through the present witness

and the present accused was not identified in the test

identification at all by this material witness. Therefore, a suitable

attempt is made to suppress the important and material

evidence by the prosecution in connection of establishing the

offence with the respondent accused and therefore, the

prosecution is not cordial and fair prosecuting agency before the

Court and, therefore not only unfair investigation has been

conducted, but even during the course of trial, no fairness is

shown by the prosecution. From the overall reading of the

deposition of this material witness, as indicated that, for the first

time, the respondent accused was seen with the present witness

on 20.07.1997 at ''Divya Apartment'' and had he there been so he

would not have misled to identify the present accused when the

test identification parade was conducted and, therefore,

deliberate intention and attempt is made to suppress the

material circumstance from this Court.

8.3. Mr. Panchal, learned Senior Advocate has further pointed

out that the prosecution have not realized this difficulty of

suppressing the material circumstance from this Court and if to

be looked into, the testimony of Jayendrasinh Jhala recorded at

Exhibit-87 who was examined as PW-14 at page 167 relying

upon page 173 12th line of his deposition and has shown

audacity to state on oath that no test identification was held qua

the present accused and therefore, the prosecuting agency has

rightly inferred partially and, therefore, grave suspicion is

emerging from the testimony of this witness and, therefore, in

that circumstance, it cannot be said in any way that the case is

established beyond reasonable doubt in so far as present

accused is concerned. It has further been pointed out that on

one hand this material witness is indicating that he had seen the

respondent accused along with other accused at ''Divya

Apartment'' on 20.07.1997 whereas on the other hand, there is

no clinching evidence adduced to indicate that the present

accused came with ''Cielo Car'' along with, carbine gun, cartridges

and a pager at ''Divya Apartment''. Therefore, if the evidence of

this witness is to be viewed along with PW-14 at Exhibit-87 it

would not indicate in any manner that the victim had any

occasion either to meet or to see the present respondent accused

and that would make it clear that the evidence of seeing this

witness at ''Divya Apartment'' is absolutely false, incorrect and

got-up. This testimony is making it crystal clear that the present

accused was not present at the time of commission of crime, was

not seen at the time when the alleged kidnapping took place and

at the time or at the place during the detention at various places.

Mr. Panchal, learned Senior Advocate has pointed out that even

if all this infirmities or probabilities are ignored, it is not the

prosecution case that right from the moment of kidnapping to

his release, at any point of time, he has seen the present

accused. Thus, the evidence of this material witness would not

held the prosecution in any manner to establish the guilt of the

respondent accused beyond reasonable doubt and therefore, the

testimony of this material witness is of no help to the case of the

prosecution.

8.4. Mr. Panchal, learned Senior Advocate further pressed into

service the testimony of one prosecution witness named as

Mobinbhai Ayubbhai Motala who was examined at Exhibit-47 as

prosecution witness, whose testimony is reflecting at page 107.

The analysis which has been undertaken and brought before the

Court by Mr. Panchal, learned Senior Advocate that this witness

happens to be the eye witness to the incident in question of

kidnapping of son of the complainant namely Manish. So far as

the evidence of this witness is concerned, when this prosecution

witness (PW) - 3 was called upon at test identification parade

when it was conducted, he could not identified the present

accused at all and this witness has not assist the case of the

prosecution in any manner about the involvement and the role of

the present accused person. The present witness ie. PW-3 is

simply referring to the ''Cielo Car'' but has not given any

description either of the car or colour of the car, in such manner

that it can be safely inferred with. It was the present ''Cielo Car''

which was utilized for commission of crime and neither the

panchnama nor the deposition of this witness is assisting the

case of the prosecution beyond reasonable doubt.

8.5. Yet another witness which has been brought before the

Court by Mr. Panchal learned Senior Advocate is PW-4 Girdhar

Devjibhai Rathod who is examined at Exhibit-48 reflecting at

page 109 of the paper book compilation. This prosecution

witness is brother of the present accused and so far as this

witness is concerned, it cannot be said that he is supporting the

case of the prosecution. He is not only declared hostile and

therefore, his evidence is not any assistance to the prosecution.

Admittedly, he was the owner of the so called pager which clearly

establish that the present respondent was neither having the

possession or ownership of the pager. At the relevant point of

time, the custody of the pager was not proved by the prosecution

through this witness. In so far as the communication referred to

pager right from the purchasing, the details of the

communication are not produced by the prosecution to establish

that right from the purchase it was accused and accused only

who was using the pager and in absence of any details with

regard to the communication through this pager, which is a

muddamal used in for commission of crime. It cannot be

presumed that such pager was used during the course of the

commission of crime and that too by the present accused only.

The prosecution can examine other persons who entered into

communication especially the live link between the commission

of crime and the respondent and therefore, Mr. Panchal, learned

Senior Advocate has submitted that there is no reliable evidence

of this witness which can be banked upon by the prosecution.

8.6. Yet another witness which has been brought to the notice

before the Court is PW-5 - Prahladbhai Maganbhai Khatri, who

is examined as PW-5 at Exhibit-51 whose testimony is at page

112 of the paper book compilation. A careful reading of this

witness is justified as per the say of Mr. Panchal, learned Senior

Advocate that he is not supporting the case of the prosecution

and is declared as hostile. The prosecution has not examined

even the second panch witness to establish the panchnama i.e.

Kalpesh Sureshchandra Shah and non-examination of this

second panch, in the absence of any cogent explanation would

not lead to a conclusion that the panchnama is established more

particularly, when this PW-5 has turned hostile. Even for the

sake of submission, the panchnama at Exhibit-52 if to be read, it

is quite clear that on 20.07.1997 the highest responsible Police

Officers from the crime branch Bharuch District, ATS, DCB

Vadodara were present and at that point of time, one PSI

Ajaybhai Ghakkhar who is DCB in Vadodara City had

disclosed that personally he had intercepted accused Raju

Rathod and he had disclosed that previously he had

interrogated accused - Raju Rohida and he had disclosed about

the possession of the carbine gun and had come to know that

accused no. 1 - Kamlesh Barot and accused no. 2 - Gautam

Ramanuj were having possession of carbine gun and had given

the same to the present accused and also black colour ''Cielo Car''

is used in commission of offence of kidnapping and, therefore,

accused no.2 Gautam Rathod was asked to contact the present

accused on mobile and called him with carbine gun in ''Cielo

Car'', as a result of which, accused no. 2 contacted accused no. 6

i.e. the present accused and called him and the present accused

went in ''Cielo Car'' and during the search, carbine gun with 58

live cartridges were found and in view of this circumstance

being taken in deposition, the following circumstance cannot be

unnoticed as per the say of Mr. Panchal, learned Senior

Advocate. It is to be considered that Raju Rohida is not

examined by the prosecution, for which there is no explanation.

It is further not explained as to why PSI Ajay Ghakkhar is also

not examined and, therefore, the important person who gave the

information and the person who received the information have

not at all been examined and for that non-examination, no

explanation is offered by the prosecution. In addition to this,

Mr. Panchal, learned Senior Advocate has submitted that Raju

Rohida disclosed such information with regard to the offence,

but papers are not produced which are very relevant. The

information was regarding very serious offence and would not

have taken lightly by PSI Ghakkhar and, therefore, immediate

steps would have been taken but to the surprise, nothing is

brought before the Court to establish any such serious act so as

to see that such infirmity may not be surfaced. The prosecution

appears to have not examined Raju Rohida as well as PSI Ajay

Ghakkhar and, therefore, it cannot be said that the prosecution

has established the case beyond reasonable doubt.

8.7. Mr. Panchal, learned Senior Advocate has further pointed

out to the Court that while reading this evidence that it is quite

clear that PSI Ajay Ghakkhar was involved right from the

beginning i.e., from the inception of the investigation of the

offence and there is a reference of the same reflecting in all

panchnama produced on record. PSI Ajay Ghakkhar, a highest

rank officer wold not have remained silent and would have taken

immediate steps if such serious offence of any nature appears

which would clearly indicate that the case has not been proved

beyond reasonable doubt. In addition thereto, it has been

pointed out that the call records (CDR) and so called talks

between the original accused no. 2 and the present accused i.e.

accused No. 6, are not brought on record by the prosecution.

When highest rank officers are very much managing the

investigation, it was expected that immediate action to stop

accused no. 6 and accused no. 2 and would immediately rush to

raid the premises. There appears to be a clear in action which

indicates that there is no credibility of evidence emerging. Mr.

Panchal, learned Senior Advocate has submitted that even in

ordinary case, a head constable or police constable would not

miss to seal the weapons and articles on the spot seized from the

accused. By referring to panchnama at Exhibit-52 page 114, it

has been pointed out that it is not only clear but rather admitted

that ''Cielo car'' is alleged to have been recovered along with other

articles is not shown at all and despite the fact that highest rank

officers were present and involved in the investigation, still the

seizure procedure is not done at all on the spot which is very

much the duty.

8.8. Mr. Panchal, learned Senior Advocate has further

submitted that according to the case of the prosecution, the

process and procedure of sealing weapons were done on

18.07.1997 which is reflecting on page 150 vide panchnama at

Exhibit-74. It is the established procedure that if all of a sudden

some articles are to be seized, in commission of crime,

immediately the sealing material and seal would be called for

from the nearest Police Station while in the present case, even

after about a month, the sealing of weapon of such serious

nature has not taken place and flimsy explanation is offered by

the Investigating Officer. Surprisingly, the explanation is coming

out that they were not having the sealing material at all. No

explanation is emerging. Mr. Panchal, learned Senior Advocate

has submitted that if carbine gun in fact and really would have

to be seized there would be communication to the concerned

Police Station immediately, and there would be represented in

writing, there would be immediate steps to call and there

appears to be no communication from the record with this

regard. Even no FSL expert has been examined for the reasons

best known to the prosecution and there is also no evidence that

the alleged arms apart from its discovery were prohibited within

the meaning of the Arms Act.

8.9. Mr. Panchal, learned Senior Advocate has further

submitted that no previous sanction for the prosecution under

Section 39 of the Arms Act is obtained and the law on the

subject is quite clear that no one can be prosecuted under the

Arms Act without valid, legal authority and proper previous

sanction under Section 39 of the Arms Act. Mr. Panchal, learned

Senior Advocate has submitted that it is the case of the

prosecution that carbine gun was given to the present accused

by original accused nos. 1 and 2 and even they have not been

convicted under the provisions of the Arms Act by the trial

Court. With regard to original accused nos. 1 and 2, there was a

appeal against the order of acquittal against the decision of this

Court and the State did not prefer an appeal so far as the offence

under the Arms Act are concerned. Thus, the judgment of the

trial Court in so far as the acquittal of the respondent accused

under the Arms Act is concerned, the same has attained finality.

Thus, the prosecution case relating to other accused persons are

concerned, those are also not convicted under the provisions of

the offence related to the Arms Act.

From the aforesaid material testimonies of the present

case, as per the say of Mr. Panchal, learned Senior Advocates it

is evident that there is no legal, reliable, credible trustworthy

evidence connecting the accused with the offence and as a result

of which, the order of acquittal delivered by the trial Court is not

required to be interfered with. In addition thereto, Mr. Panchal

learned Senior Advocate has submitted that the trial Court has

recorded the evidence, has scrutinized the evidence minutely

and has also given legal, valid and cogent reasons to justify the

ultimate conclusion of acquittal in respect of the present

accused and therefore, Mr. Panchal learned Senior Advocate has

submitted that looking to the scope of appeal against the order of

acquittal, even if two view are possible, then also the view which

has been in favour of the accused deserves to be accepted and

therefore, by submitting this, Mr. Panchal learned Senior

Advocate has submitted and requested that even the State has

also preferred the acquittal appeal against original accused no. 7

i.e. Rameshbhai Natwarlal Patel, against accused no. 8 -

Bhavnaben alias Tina Barot, accused no. 9 - Minaben Pravin

Patel and accused no. 10 - Tilu alias Mohmad Rafik Mohamad

Siddiq Sheikh. vide Criminal Appeal No. 227 of 2007. This court

was pleased to confirm their order of acquittal though the

evidence of their involvement was found to connect with the

victim - Manish and, therefore, when there was a direct evidence

even in that case also, this Court has not reverse the order of

acquittal in so far as the aforesaid accused persons are

concerned, and therefore, the accused of the present case stand

on different footing altogether rather on much higher pedestal

and, therefore, the order of acquittal may not be interfered with

and the appeal filed by the State deserves to be dismissed. No

other submissions are being made.

Having heard the learned advocates for the respective

parties and having gone through the evidence on record which

has been noticed by this Court, first of all the trial Court has

examined the evidence in detail and only thereafter, arrived at a

conclusion of acquitting the present accused. It has also been

found that so far as other accused persons are concerned,

namely accused nos. 7, 8, 9 and 10 their acquittal is also not

reversed by this Court while dealing with Criminal Appeal No.

227 of 2007 and, therefore, it seems that on the basis of same

evidence, substantially when the present accused i.e. accused

no. 6 has also been acquitted by this Court, there is no other

circumstance by which it can be held that the trial Court has

erroneously exercised the jurisdiction. In addition to this, it has

also been found from the record that the prosecution witnesses

which have been examined and relied upon by the prosecution

agency on account of infirmities prevailing in their testimonies

are not possible to be treated as reliable which would permit this

Court to hold any perverse approach adopted by the learned

trial Judge. On the contrary, as said earlier, so far as PW-1

namely Bhupendrabhai Shah is concerned, this fact is noted

that he is not the witness to the incident i.e. actual occurrence.

His evidence is practically hearsay evidence and this witness has

not at all involved the present accused in commission of crime.

10.1. So far as another prosecution witness i.e. PW-2 - Manish is

concerned, who is examined at Exhibit-46, the Court has seen

that this witness has stated that he was kidnapped in a ''Cielo

Car'' but this witness neither gave any description in detail about

the '' Cielo Car''. Assuming that the colour of the car is not given

by this witness who is the victim himself, from the testimony of

this witness, the conduct of not only identifying the colour but

the identification of Car has also not been established by this

Court during the course of trial. Even no attempt was made by

the prosecution, even during the course of trial to get the Cielo

Car identified from this very witness. This witness has also not

specifically attributed any role so far as kidnapping of the victim

is concerned right from 15.07.1997 to 19.07.1997, no role is

attributed to have been played by this accused during the course

of trial, while committing the alleged offence and, therefore, this

prosecution witness (PW) 2 has also not thrown any light which

can heavily be relied upon to reverse the acquittal, which has

been ordered by the trial Court.

10.2. One of the main important issues qua test identification

parade which was held by the investigating agency through this

witness and it is important to note that the present accused was

not identified at all in test identification parade and, therefore,

when the victim himself has not identified the present accused,

there is hardly any credence attached to the evidence of the

prosecution, in-so-far as the present accused is concerned. In

addition thereto, the evidence against this accused is found to be

totally inadequate which would not permit this Court to dislodge

the finding which has been arrived at by the learned trial Court.

10.3. From the overall discussion of this witness, it is emerging

that the accused was not present at the time of commission of

crime and was not there at the place during his detention at

various places and, therefore, there is a chance of wrongful

involvement of the accused also, which cannot be ruled out.

10.4. The record of the case further indicate that the prosecution

witness (PW) 3 who is stated to be an eye witness to the incident,

but no cross-examination is done. It is revealed that in test

identification parade, this prosecution witness could not identify

the present accused. Further, this witness has no doubt named

the car i.e. ''Cielo'' but has not given any description of the car

nor colour of ''Cielo Car'' in any manner and he has not identified

at any point of time, even before this Court and for that there is

no explanation at all. Now, same is the case with other witness

also, not only that the prosecution witness (PW) 4 i.e. Girdhar

Devjibhai Rathod at Exhibit-48 is not establishing, but this

witness has chosen to remain hostile and has not supported the

case of the prosecution.

10.5. Even prosecution witness (PW) 5 Prahlad Maganbhai

Khatri at Exhibit-51 is concerned, he has also not supported the

case of the prosecution in any manner in which the prosecution

has to rely and, therefore, the overall appreciation of the

evidence on record is to be looked into in the context of

concerting and proving the case beyond reasonable doubt. The

evidence which has been brought on record by the prosecution

cannot be said to be so cogent, or so concrete on which it can be

stated that the case has been proved against this accused

beyond reasonable doubt and therefore, considering this overall

material on record, and considering the fact that the valid

reasons are assigned by the Court below, the Court is of the

considered opinion that this is not a fit case in which any other

conclusion is possible, which may allow the Court to substitute

the ultimate conclusion arrived at by the learned trial Judge.

10.6. The Court has also considered at length the documentary

evidence as well and on the basis of the same also, there is

hardly any material which can connect the respondent accused

with the commission of crime. Surprisingly, no witness from FSL

is examine to justify the case by prosecution. As stated earlier, in

addition to non-examination of FSL officer, prohibited arms

have not been certified as apprehended during the course of

trial. Not only that even identity of the weapon is also very

doubtful and the sealing has also not appeared to be in the

manner in which it may inspire any confidence and therefore,

there seems to be no clinching or legal evidence now

impeachable in nature which would adopt even remotely that

the prosecution has proved the case beyond reasonable doubt.

From the overall reading of the evidence in the context of the

reasons which are assigned by the learned trial Judge there

appears to be no perversity or no irregularity of such nature

which may be said to have resulted into miscarriage of justice

and, therefore, in absence of such illegality and looking to the

scope of appeal against the order of acquittal, well defined by

now in a series of decision, this Court is of the opinion that no

interference is called for. This Court has even independently

examined the evidence as a whole and found that there is no

other distinguishable feature by which any deviation is possible

and, therefore, in such a situation, when the material is not

much cogent in nature, the Court cannot give different thought

to the conclusion arrived at by the learned trial Judge.

In the context of submissions made by learned APP Mr.

Hardik Soni who cited two decisions of the Apex Court reported

in the case of Nirmal Singh v. State of Haryana (supra) and in the

case of Munish Mubar v. State of Haryana (supra), now if we

examine these two decisions, first one is based on altogether on

different fact situation and it is settled position of law that slight

change in the fact would make a world of difference in applying

the principles laid down in any decision and, therefore, if the

facts are so examined in the present case, the Court cannot

ignore such proposition which has been laid down by the Apex

Court in the the case of Gian Chand & Ors., v. State of

Haryana reported in (2013) 14 SCC 420, more particularly para

Since the Court has banked upon the said proposition, the

Court deems it proper to place and reproduce the same

observation of the Apex Court which deserves to be considered.

"24. So far as the judgment in Avtar Singh is concerned, it has been considered by this Court in Megh Singh v. State of Punjab . The Court held that the circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based."

So far as the decision of the Apex Court in the case of

Nirmal Singh v. State of Haryana reported in (2000) 4 SCC 41 is

concerned, it is in the context of reading of Section 299(1) of the

Code of Criminal Procedure and in that case, there was no

grievance was raised about the non compliance with the

requirement and conditions stipulated under Section 299 of the

Code of Criminal Procedure and, therefore in that context the

observations which were made are not possible to be applied

here by straight-jacket formula and, therefore, the said decision

is of no avail to the learned APP to assail the order. Another

decision which has been pressed into service of the Apex Court

is in the case of Munish Mubar v. State of Haryana reported in

(2012) 10 SCC 464 in which a reference is made with respect to

further statement to be recorded of the accused under Section

313 of the Code of Criminal Procedure. It has been curled out by

the Apex Court that it is obligatory on the part of the accused

while being examined under Section 313 of the Code of Criminal

Procedure to furnish some explanation with regard to the

incriminating circumstance associated with him, rather it was

the duty to explain, but at the same time it has also been

propounded that circumstance should not be given any undue

weightage for convicting the accused persons and therefore,

these observations no doubt are made by the Apex Court in the

context of the duty of the accused but at the same time, those

observations mechanically are not possible to be believed herein

and thereby concluded that it is not the duty of the prosecution

to establish the case beyond reasonable doubt in any case. By

citing this portion of the decision, the prosecution cannot

absolve from its obligation to establish the case beyond

reasonable doubt and, therefore, the circumstance and the head-

note in isolation cannot be read or allowed to be pressed into

service for substantiating any contention. The overall

circumstance which reflects in the earlier two decisions which

are pressed into service by learned APP Mr. Hardik Soni are not

permitting the Court to apply the straight-jacket formula,

particularly when the reasons are assigned by the learned trial

Judge in detail and on the basis of detailed analysis, an order of

acquittal is passed and, therefore, the decisions which are relied

upon are not of any avail to learned APP Mr. Soni.

So far as the decisions which have been relied upon by

learned senior advocate Mr. Panchal are related to some of the

circumstance stated in the present case.

13.1. The first decision which has been relied upon is in the case

of Sahib Singh v. State of Punjab reported in AIR 1997 SC

2417, wherein para 7 is relied upon. In the said case offence

under the Terrorist and Disruptive Activities (Prevention) Act,

(TADA) was to be tried and during the course of the trial, a

contention with regard to seizure of revolver from the accused

which was not packed and not sealed and therefore, no evidence

with regard to circumstance as to with whom the revolver was

after the seizure till it was sent to Arms Expert for testing and in

the lacuna of such evidence, the Apex Court has extended the

benefit of doubt. The relevant observation contained with regard

to this issue are contained in para 7 which deserves to be

reproduced herein after Hence, quoted:-

"7. Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to all upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility, We next find from the record that the arms and ammunitions allegedly recovered

from the appellant and seized were not packeted and sealed. In Amarjit Singh v. State of Punjab, 1995 Supp. (3) SCC 217 this Court has observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record, we further find that there is no evidence to indicate with whom the revolver was after its seizure by P.W. 3 till it was sent to the Arms Expert for testing through constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities, we are of the view, that the appellant is entitled to the benefit of reasonable doubt."

13.3. So far as another decision which has been relied upon is in

the case of Mohinder Singh & Anr. v. State of Haryana

reported in (1996) 11 SCC 369 wherein also by referring to para

6, it has been contended that the prosecution has not been able

to prove the sanction when there was a case of unlawful

possession of the revolver where sanction is required under

Section 39 of the Arms Act and, therefore, by referring to this

Mr. Panchal, learned senior advocate has substantiated his

contention that there was no previous sanction for the

prosecution and, therefore, conviction under the Arms Act is

held to be illegal. Now under the Arms Act, there appears to be

no controversy as there is no cogent material and therefore,

rightly not been convicted. But this takes us to yet another

decision which has been relied upon by learned Senior Advocate

Mr. Panchal with respect to best evidence raised and after

applying the said principle, it was noticed by the Court that if

the prosecution only establishes that the victim was kidnapped

in a Maruti Car who failed to establish that the accused were

responsible for the death or kidnapping the person then the

benefit must base on to accused. The Apex Court has also

propounded that the findings of guilt cannot be based upon the

result of investigation by the police which could be slightly on

the basis of the evidence produced during the course of the trial

and therefore, here is a case where the evidence on record is not

indicating any cogent material which would permit the Court to

held the accused guilty and convict him by reversing the order of

acquittal.

13.4. Yet another decision which has been pressed into service

which deserves consideration is in the case of Rajkumar Singh

alias Raju alias Batya v. State of Rajasthan reported in

(2013) 5 SCC 722 wherein it has been propounded that on the

basis of well recognized principles that during the course of trial,

if there is suspicion, no matter how strong such suspicion,

cannot and must not be permitted to take place of proof. The

prosecution need to prove the case beyond reasonable doubt.

Para 21 of the said decision since relevant to the issue, the same

is reproduced hereinafter as considered by this Court. In this

very judgment, the other propositions are also reflecting but the

very relevant para since para 21 is reproduced herein after :-

"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 ."

13.5. Mr. Panchal learned Senior Advocate has further relied

upon the decision of this Court in the case of Mahendra

Shamaldas Soni v. State of Gujarat reported in 1993 (2) GLH

793 wherein the Court has propounded the issue as to how

appreciation of evidence is to be undertaken. It has propounded

some of the guidelines on the basis on which appreciation of

evidence has taken place.

In the aforesaid premises, when such weak piece of

evidence is tried to be relied upon by the prosecution, to hold the

respondent original accused no.6 as guilty of offence, there

seem to be no justifiable reason, distinguishable in nature to

permit this court to reverse the order of acquittal more

particularly, in a State Appeal where the acquittals are not to be

disturbed so lightly. The Apex Court in a number of decisions

are holding that unless there is perversity amongst any nature is

reflecting in those acquittals, the Court may take a different

view, but not in a routine manner. Therefore, some of the

observations of the Apex Court in the case of Vinod Kumar v.

State of Haryana reported in (2015) 3 SCC 138, with regard to

that issue of exercising jurisdiction while dealing with acquittal

appeal deserves to be reproduced herein after :

"17. Before we dwell upon the factual score whether the prosecution has prove the case to warrant a conviction, we think it apt to recapitulate the principles relating to the jurisdiction of the High Court while deciding the appeal against acquittal. In this context, reproducing a passage from Jadunath Singh v. State of U.P .1would be profitable:

"This Court has consistently taken the view that in an appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor2 and Nur Mohammad v. Emperor3 . These two decisions have been consistently referred to in the judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals (see Surajpal Singh v. State4and Sanwat Singh v. State of Rajasthan5 )."

Similar view has been expressed in Damodarprasad Chandrikaprasad v. State of Maharashtra6, Shivaji Sahabrao Bobade v. State of Maharashtra7, State of

Karnataka v. K. Gopalakrishna8, Anil Kumar v. State of U.P .9, Girja Prasad v. State of M.P .10and S. Ganesan v. Rama Raghuraman11 .

In this regard, we may fruitfully remind ourselves the principles culled out in Chandrappa v. State of Karnataka :

"42. From the above decisions, in our considered view, the following general principles regarding powers of the 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 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 is 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.

(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."

In the premise aforesaid, and in view of the facts stated

herein-above, upon consideration of the entire material, even

independently from the evidence, the Court found that the stand

taken by the learned senior advocate for the accused and the

contentions raised have sufficiently satisfied the court that the

order of acquittal is not possible to be reversed. Resultantly, in

the considered opinion of this Court, since the order in question

is not suffering from any infirmity or perversity, the Court would

not like to dislodge the findings arrived at by the Court below.

Accordingly, the appeal filed by the state is dismissed.

R & P to be sent forthwith to the court concerned.