State Of Gujarat vs Sirajahmed Abdulkarim Meman
2021 Latest Caselaw 16878 Guj

     R/CR.A/353/2009                                JUDGMENT DATED: 27/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 353 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          STATE OF GUJARAT
                                Versus
                SIRAJAHMED ABDULKARIM MEMAN & 4 other(s)
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Appearance:
MS. MAITHILI MEHTA, APP for the Appellant(s) No. 1
MR JV JAPEE(358) for the Opponent(s)/Respondent(s) No. 1,2,3,4,5
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                Date : 27/10/2021

                               ORAL JUDGMENT

1. Present appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 20.12.2008, passed in Sessions Case No. 147 of 2006 by the the learned Additional Sessions Judge, Fast Track Court No.4, Himmatnagar camp at Idar, recording the acquittal.

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2. The brief facts of the case are that on 13.01.2004 at about 19:00 hours complainant along with Head Constable Natvarsinh Shankarsinh, Buckle No. 610, Police Constable Vahidan Joravardan, Buckle No. 784, Police Constable Pravinbhai Nathabhai, Buckle No. 1316 and Police Constable - Kantibhai Punjabhai, Buckle No. 1079 were on petrolling on Vadali Khedbrahma Road. Further, as per the case of the prosecution, while they were returning from Vadali Khedbrahma Road, when they arrived near Shantinagar Society at about 21.00 hours, one Jeep was found lying near Shantinagar and two persons were standing near the Jeep and three persons were seen going towards Shantinagar in the light of Jeep. Therefore, the complainant proceeded towards them and seen in the light of battery, they were found with deadly weapons like Dhariya and Dhoka. It is further the case of the prosecution that two persons, who were standing near the Jeep were also found with Dhariya and Iron Pipe. That, the complainant shouted and asked about their identification, the accused persons who were standing near Shantinagar had ran away from the spot of incident on seeing the Police personnel and those two persons who were standing near Jeep were caught alongwith Jeep. That, Police Constable - Pravinbhai Nathabhai has tried to chase the Jeep, the accused persons dashed Jeep with him and thereby caused injuries on hand and leg. That, those three persons who were standing near Shantinagar had pelted stones towards complainant and the Head Constable Natwarsinh, Police Constable - Badridan and Kantibhai with intention to release other accused persons and thereby caused damage of glass of Jeep as well as injuries to driver Yusufkhan. That, though there was notification issued by learned Magistrate under Bombay Police Act, the accused persons were found in possession of deadly weapons like Dharia and Dhoka and thereby committed offence under Bombay Police Act. Thus, all the accused persons in abetment of

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each other have committed offence of robbery as well as under the Bombay Police Act, and therefore, the complainant has filed aforesaid complaint before Vadali Police Station for the alleged offences under Sections 399, 120(B), 279, 336, 338 of the Indian Penal Code and Section 135 of the Bombay Police Act.

2.1 Upon such offence being registered, investigation started and the investigating Officer recorded statements of different witnesses and after completion of the investigation, Charge-sheet was filed against the accused for the offences in question. Since the offence is absolutely triable by the Sessions Court, therefore the same was committed to the learned Additional Sessions Judge, Fast Track Court No.4, Himmatnagar camp at Idar. Since the accused did not plead guilty, trial was proceeded against the accused. Vide impugned judgment and order dated 20.12.2008, the learned Sessions Judge acquitted the accused. Being aggrieved by the same, the State has preferred the present appeal.

3. Heard, learned APP Ms. Maithili Mehta for the appellant - State and learned advocate Mr. J.V. Japee for the respondents - accused.

3.1 The learned APP Ms. Maithili Mehta for the State contended that the learned trial Judge failed to appreciate evidence of PW 5- Kumudbhai Karshanbhai Patel, who has seen the accused persons with Dharia and Dhoka and also identified the accused persons before the trial Court and evidence of this witness also supported by the evidence of PW 6, Kumudbhai Savjibhai Patel at Exh. 25, who has also identified the accused no. 3 Babu, accused no. 4 Mitha, accused no. 5 Dhana Deva. It is submitted that these witnesses have supported the case of the prosecution, however, in the submission of the learned APP, the learned trial Judge has failed to appreciate the same in its true and proper perspective.

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3.2 The learned APP further, submitted that the learned trial Judge has not properly appreciated the evidence of PW 7 - Pravinbhai Nathabhai - Buckle No. 1312 at Exh. 26, who has deposed that as on the date of incident he was in patrolling alongwith Police Constable Natwarsinh, Shankarsinh, Badridan and Kantibhai Punjabhai and he further deposed that as on date of incident near Kothi Kampa, Khedbrahma Highway, five to six persons were found with Jeep and upon asking out of aforesaid persons, one person tried to escape with Jeep and while escaping he has caused injuries to him. He further deposed that accused persons were found with Sword, Dhariya and Dhoka and he has also identified the accused person before the trial Court. Hence, this witness has fully supported the case of the prosecution and in that case learned Judge has no reason to disbelieve the case of the prosecution.

3.3 The learned APP drew the attention of the Court to the deposition of PW-8 Executive Magistrate, Kodidas Dhanjibhai Pandya, Exh. 28 and PW-9 Executive Magistrate, Ranchhodbhai Harjivandas Chenva, Exh. 31, who have identified the accused persons. Therefore, the learned trial Judge has also not believed the evidence of this witnesses and thereby has committed a grave error.

3.4 The learned APP further invited attention of this Court to the evidence of PW 25 Sardarbhai Lavjibhai Karan, Exh. 66, who has fully supported the case of the prosecution and he stated the fact that on 13.01.2004, while he was discharging his duties as PSI with the Vadali Police Station with other Police personnel, they found one Jeep lying on road near Shantinagar, Kothi Kampa and accused persons standing near Jeep with deadly weapons. Further, on seeing Police Jeep, accused persons had ran way from the spot of incident and other two persons who were standing near Jeep had ran away

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alongwith Jeep and those people were chased by the complainant and they were caught with Jeep and accused person caused injuries to the Police Constable - Pravinbhai on right hand and leg. Therefore, evidence of this witness also gets support from the evidence of PW 26, Amrutbhai Halabhai Desai, Exh. 68, in that case also learned trial Judge has no reason to believe the case of the prosecution.

3.5 The learned APP has submitted that the trial Judge erred in disbelieving the evidence of police witness only on the ground that they are police witnesses and they are interested witnesses.

3.6 The learned APP has also submitted that the trial Judge failed to appreciate that the evidence of witnesses gets corroboration from the evidence of Medical Officer. It is further submitted that Panchas have been declared hostile and they are not supporting panchnama, in that case evidence of Police witnesses ought to have relied who has no grudge with the complainant.

3.7 The learned APP further submitted that learned trial Judge erred in observing minor omissions and contradictions in the evidence of prosecution witnesses and thereby committed error in acquitting the accused.

3.8 The learned APP further contended that learned trial Judge erred in holding that prosecution has failed to prove its case beyond reasonable doubt that respondents have committed breach of notification issued by District Magistrate and thereby committed offence under Section 135 of the Bombay Police Act.

3.9 Thus, the learned APP has submitted that although cogent and material evidence had been produced by the prosecution and the case was proved beyond reasonable doubt, the trial Court has

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committed a grave error in acquitting the accused and accordingly, she urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.

4. Per Contra, learned advocate Mr. J.V. Japee for the respondents- accused, while supporting the impugned judgment and order of the trial Court, argued that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the respondents - accused, which is just and proper. He submitted that while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality.

5. Heard the learned advocates for the respective parties and gone through the impugned judgment and order of the trial Court as well as the material on record.

6. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court.

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6.1 Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

6.2 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the the appellate Court, in such circumstances, re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

6.3 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from

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being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

6.4 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable.

The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High

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Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(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 emphasise 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

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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."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

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(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v.

CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC

636)." (emphasis supplied)

9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable

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person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re- appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p.

233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-

appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this

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Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel

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appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an

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order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

7. In the aforesaid backdrop, this Court has gone through the deposition of the PW -1 Dr. Sudhirbhai Chawla, who has testified at Exh. 13, wherein he has admitted that in both the certificates he has not show the age of the injury. He has also admitted that no identification points have been shown in the certificates. He further admitted that he has not given opinion about the injuries of Pravinbhai and such injuries can be caused through glass.

7.1 The prosecution has examined PW-2, Dr. Zakir, Exh. 21, in his deposition he has admitted that he has not shown the age of the injury. It is also admitted that mark of identification is not shown in the certificate. It is further admitted that if the person falls down while running, such type of injuries can be possible.

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7.2 The prosecution has also examined the PW-3, Natwarsinh, Exh. 22, in his deposition, it is admitted that Pravinbhai - Police Constable fell down on the road, therefore he has sustained injuries. He has also admitted that on the day of occurrence there was dark night at Shantinagar and therefore, pursuant to the deposition of the PW Nos. 1, 2 and 3, the case of the prosecution is not fully inspires confidence, upon charges levelled against the accused persons.

7.3 The prosecution has also examined the PW-5 Kumudbhai, Exh. 24, he has admitted that his statement was recorded on the next day of occurrence but he has not stated any name of person. He further stated that the occurrence had taken place at about 9.00 P.M and there was dark and therefore, this witness also not supported the case of the prosecution.

7.4 The prosecution has further examined the PW -6 Kumudbhai, Exh. 25, in his cross - examination, it is admitted that while recording his statement, the P.S.I has called the accused person.

7.5 The prosecution has examined PW-7 Pravinbhai, Exh. 26, wherein, it is admitted that primary investigation was conducted by the P.S.I and he was sitting in the Jeep. He has also admitted that the testimony is on the basis of the piece of paper (Kapali) and in the opinion of the Court such practice is not permitted, unless the Court so permits.

7.6 The prosecution has examined PW-8, Kodidas, Exh. 28, who was the Mamlatdar (Executive Magistrate), conducted T. I. Parade (Identification Parade) wherein, he has admitted that it is true that he has to require to call the witnesses, who are similar to the age of accused to make correct and perfect T.I. Parade.

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Further, it is admitted that he has not verified the age of the persons who were called, even he has no knowledge who had called the witnesses. Therefore, this Court is of the opinion that the T. I. Parade is also not carried out as per the settled principles of law for conducting the T.I. Parade. Further, the cross-examination is conducted by the Executive Magistrate, that he has not called the witnesses having clothes (Pahervesh) similar to the accused persons. He has not noted about the nature of procedure to be carried out in T.I. Parade, therefore, also the prosecution has failed to prove its case, through T.I. Parade.

7.7 The prosecution has also testified the PW-11 Javanji, Exh. 35, PW-12 Dhulabhai, Exh. 36, PW-13, Kuberbhai, Exh. 37, PW- 14, Bhikhabhai, Exh. 39, PW-15 Babubhai, Exh. 42, PW-16 Dineshkumar, Ehx. 43, PW-17 Dahyabhai Vankar Exh. 45, PW-18 Mohanbhai Patel Exh. 48, PW-19 Vinodkumar Patel Exh. 50, PW- 20 Kishorbhai Solanki Exh. 51, PW-21 Hemantkumar Raval, Exh. 53, PW-24 Safirbhai Mansuri, Exh. 63 are turned Hostile.

7.8 The prosecution has examined the PW- 25 Sardarbhai Karan, Exh. 66, the P.S.I. deposed that on 13.01.2004 he has carried out the Investigation including recording of statements of different persons. He has admitted that in the cross - examination, the scene of offence is full of traffic. He has also admitted that there were two persons standing near the Jeep with Dhariya and Pipe.

7.9 The prosecution has also examined PW- 26 Amrutbhai Desai, Exh. 67, who was also P.S.I he has submitted that charge- sheet. He has also admitted that at the time of T.I. Parade, he has not narrated the physical structure of the accused persons. He has

R/CR.A/353/2009 JUDGMENT DATED: 27/10/2021

also admitted that the accused persons were in the Police custody at the time of conducting the T.I. Parade.

8. In view of the aforesaid discussions and observations, in the considered opinion of this Court, the prosecution has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference. Resultantly, in fleri, the appeal fails and is dismissed accordingly. Impugned judgment and order dated 20.12.2008, passed in Sessions Case No. 147 of 2006 by the learned Additional Sessions Judge, Fast Track Court No.4, Himmatnagar camp at Idar, recording the acquittal is confirmed. Bail bond, if any, shall stand cancelled. R&P be transmitted back forthwith.

(A. C. JOSHI,J) prk