State Of Gujarat vs Ansar Ahmed Gulammohmad Mir
2023 Latest Caselaw 2922 Guj

     R/CR.A/111/2002                                JUDGMENT DATED: 13/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 111 of 2002


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

and
HONOURABLE MRS. JUSTICE M. K. THAKKER

==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                             STATE OF GUJARAT
                                   Versus
                       ANSAR AHMED GULAMMOHMAD MIR
==========================================================
Appearance:
MS JIRGA JHAVERI APP for the Appellant(s) No. 1
MR K J PANCHAL(2422) for the Opponent(s)/Respondent(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
          and
          HONOURABLE MRS. JUSTICE M. K. THAKKER

                                Date : 13/04/2023

                     ORAL JUDGMENT

(PER : HONOURABLE MRS. JUSTICE M. K. THAKKER)

R/CR.A/111/2002 JUDGMENT DATED: 13/04/2023

1. The appellant - State of Gujarat has preferred this appeal

under Section 378 of Code of Criminal Procedure, 1973, against

the judgment and order of acquittal dated 10.10.2001 passed by

learned Additional Sessions Judge, Court No.4, Ahmedabad city

in Sessions Case No.360 of 2000 thereby, the respondent-

accused was acquitted from the charges under Section 20(b)(ii)

read with Section 22 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short, 'NDPS Act').

2. It is the case of the prosecution that on 19.04.2000 at

about 11.30 a.m., one unarmed Head Constable, namely,

Sabursinh attached with Panchkuva Police Chowki, Kalupur Police

Station, Ahmedabad city, who was on the patrolling duty along

with his two police officers, namely, (1) Ashokkumar Amratlal,

Police Constable and (2) Ashokkumar Ganpatbhai, Police

Constable had intercepted one auto rickshaw. On making inquiry

from the passenger, who was sitting in the rickshaw that from

where he was going, it was replied by the passenger that he was

Military Man and he shown his identity card. On further inquiry as

to what he was carrying in his bag. He replied that there is no

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any offending article in the bag. On further suspicion and on

making further inquiry, whether any liquor is lying in the bag, he

informed that he had one bottle in his bag. On creation of doubt

about the crime, he was brought to the nearest police chowki i.e.

Sarangpur Police Chowki along with the rickshaw. On reaching to

the Sarangpur Police Chowki, the accused proceeded towards

the chowki and while after disembarking from rickshaw, the

police proceeded towards the chowki. Suspect after taking bags

instead of following police chowki, threw away his bag outside

the police chowki and ran away from the spot.

3. The police constable had tried to catch the suspect,

however, the efforts remained in vain. They tried to make

extensive search from the nearby vicinity and also make inquiry

from the driver of the auto rickshaw regarding at which place, he

was to take this rickshaw. However, on completion of that duty

hours, they came back to the chowki and had opened the bag in

presence of panch-witnesses. There were 5 articles found from

the bag and on opening one article, the narcotic substance,

namely, charas was found, therefore, they had informed their

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higher officer, namely, Amrutbhai Desai, Police Inspector with

regard to the crime. On arrival of Police Inspector, another

panchnama was drawn in the presence of the panch-witnesses

and ultimately, it was found that there was 21 kg. Charas lying in

the bag. Therefore, First Information Report came to be

registered being I-C.R.No.5022 of 2000 before the Kalupur Police

Station on 19th April, 2000 at around 23.30 hours for the offence

punishable under Sections 20(b)(ii) read with Section 22 of the

'NDPS Act'. That accused came to be arrested on 25 th July, 2000

by the Police Inspector, Amrutbhai Lallubhai Desai and was

remanded to the judicial custody. That on conclusion of the

investigation, charge-sheet came to be submitted before the

Competent Court on 24th October, 2000 and same was numbered

as Criminal Case No.43 of 2000 for commission of offence under

Sections 20(b)(ii) read with Section 22 of the 'NDPS Act'. As the

offence is triable by the learned Court of Sessions, same was

committed to the Sessions Court, Ahmedabad city where it was

numbered as Sessions Case No.360 of 2000 for the purpose of

trial.

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4. Learned Judge had framed the charge against the

respondent at Exh.1 for the offence punishable under Sections

20(b)(ii) read with Section 22 of the 'NDPS Act'. The charge was

read over and explained to the respondent who pleaded not

guilty to the same and claimed to be tried.

5. In order to bring home the guilt of the accused, prosecution

examined 9 witnesses and produced certain documents evidence

list such as Panchnama of Test Identification Parade, Muddamal

receipts, Report of FSL, Panchnama regarding arrest of the

accused, opinion from the FSL officer, the Report of the

Psychology Department, etc.

6. Learned Public Prosecutor had examined before the trial

Court, PW-1, namely, Sureshchandra Vasudev Dixit, who was

Executive Magistrate and conducted Test Identification Parade

on 6th August, 2000 before whom the two witnesses, namely,

Pramod and Jaymin had identified the accused before him. The

Panchnama of Test Identification Parade was exhibited at Exh.10.

The prosecution had further examined the witness, PW-2,

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namely, Natvarsinh Samatsinh, PSO, serving at Kalupur Police

Station and through this witness, the prosecution had produced

the Muddamal receipt at Exh.12. The prosecution had further

examined the witness being Shartanji Vajaji Darbar as PW-3, who

was also Executive Magistrate and conducted Test Identification

Parade on two occasions i.e. 22 nd July, 2000 and 25th July, 2000

wherein, the complainant and police constable as well as

Nasirbhai Usmanbhai, rickshaw driver, identified the respondent-

accused. All the three (3) panchnamas were exhibited through

the evidence of this witness and same was marked as Exh.18,19

and 20 respectively. The prosecution further examined one

Nurruddin Amrudin - PW-4 who carried the samples to the FSL

and through this witness, the receipt was exhibited at Exh.22.

The prosecution had further examined the complainant,

Subbursinh Solanki - PW-5 and through this witness, the First

Information Report came to be exhibited at Exh.25. The

prosecution had further examined the witness, namely,

Ashokkumar Ganpatrav, who also accompanied the complainant

and serving as Police Constable at Kalupur Police Station. The

prosecution had further examined PW-7, namely, Jaiminbhai

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Odhavjibhai Thakkar, owner of the Sunrise Hotel. The

prosecution further examined PW-8, namely, Shankerbhai

Nagjibhai, who was Crime Writer Head at Kalupur Police Station,

who had taken the charge of muddamal. The prosecution had

further examined the Police Inspector, Investigating Officer,

namely, Amrtubhai Lallubhai Desai at PW-9, who conducted the

investigation and filed the charge-sheet before the competent

Court. On filing the closing pursis at Exh.45, on 10.10.2001, the

learned Judge has explained the circumstances and incriminating

material put by the prosecution against the respondent-accused

and recorded his further statement under Section 313 of the

Code of Criminal Procedure, 1973. In further statement, the

respondent-accused denied the charges levelled against him.

7. Thereafter, learned advocate of the parties were heard by

the learned Additional Sessions Court, Ahmedabad city and

elaborately dealt with documentary evidence as well as oral

evidence in the form of depositions and after discussing the

same with reasoning, has come to the conclusion that

prosecution has failed in establishing the evidence against the

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respondent-accused beyond reasonable doubt. The learned trial

Judge has, after appreciating the evidence on record, observed

that prosecution failed to produce the evidence which inspires

the confidence against the respondent-accused. According to the

learned Judge, no reliable evidence was produced to prove the

charge against the respondent-accused for the offence

punishable under Section 20(b)(ii) read with Section 22 of the

'NDPS Act' and therefore, respondent was entitled to be

acquitted of the charge levelled against him. In view of the

above referred conclusion, learned Judge has acquitted the

respondent from the offence punishable under Sections 20(b)(ii)

read with Section 22 of 'the NDPS Act', giving rise to above

numbered appeal.

8. Heard learned advocates for the parties.

9. Learned APP, Ms.Jhaveri, has mainly relied upon oral

evidence and assailed the judgment of learned Additional

Sessions Judge, Ahmedabad city in Sessions Case No.360 of

2000. According to Ms.Jhaveri, there was ample evidence,

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namely, evidence of PW-5 and PW-6 who deposed before the

learned Court supporting the case of the prosecution and they

had identified the accused before the Executive Magistrate in

Test Identification Parade. According to Ms.Jhaveri, the

prosecution had further established the case by examining the

owner of the Hotel, namely, Jaiminbhai where the accused has to

reach. According to Ms.Jhaveri, report of FSL further confirms

with regard to the substance lying in the bag, namely, Charas

weighing around 21 kgs. Ms. Jhaveri, learned APP further relied

on the opinion of the Lie Detection Test conducted by the FSL to

show that there were indication that accused found to be telling

lies. Ms.Jhaveri, further relied upon the FSL Report below Exh.34

where clothes sent (including seized from bag) to FSL are found

to contain perspiration - sweat of same person having 'B' group.

Ms.Jhaveri, heavily relied upon Test Identification Parade where

respondent-accused were identified by the witness, namely,

Jaimin, the hotel owner, Subursinh and Ashokkumar both were

the police officers. Ms.Jhaveri, learned APP further submitted that

there was no any grudge, which was alleged during the trial

against the police officers. Therefore, there was no reason to

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falsely implicate the respondent-accused for the purpose. It was

further submitted by Ms.Jhaveri that accused were arrested

through transfer warrant and that also one of the ground

confirming the involvement of the accused in the offence.

10. Learned APP had submitted that there were no any

material discrepancies found during the cross-examination on

oath. The prosecution had proved the case beyond the

reasonable doubt. The learned Judge had committed error in

acquitting the respondent-accused for the charges levelled

against him. Learned APP further submitted that evidence on

record has not been appreciated in its true and correct

perspective by the learned trial Judge and therefore, the present

appeal should be allowed.

11. On the other hand, learned advocate, Mr.K.J.Panchal,

appearing for the respondent-accused had strongly supported

the findings of the learned trial Judge on the ground that the

prosecution had not produced any evidence, which inspired

confidence, presumption of the innocence in favour of the

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accused, which is further strengthen by the order of the

acquittal. According to Mr.Panchal, after appreciating the entire

evidence oral as well as documentary, on record, learned Judge

has rightly come to the conclusion that there is no direct

evidence, which supported the case of the prosecution and

therefore, learned trial Court has rightly acquitted the

respondent-accused from the charges levelled against him.

12. Mr.Panchal, further submitted that as is known to the

Hon'ble Court that primary it is first and foremost as well as

preliminary duty on the prosecution to bring home the guilt of

the accused beyond shadow of doubt. It is also at the same time

duty of the prosecution to prove involvement and complicity of

accused in the alleged offences beyond reasonable doubt.

Mr.Panchal further submitted that as per settled law, prosecution

has to stand on its own legs and it cannot derive any benefit

from the weakness of the defence. It is submitted that

prosecution has miserably failed to link the accused with so-

called seizure of Narcotics-contraband articles. Prosecution in

present case has not been successful to establish involvement of

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the accused in the crime beyond reasonable doubt.

13. Mr.Panchal, learned advocate for Respondent-accused

further submitted that evidence of Prosecution Witnesses must

be of sterling quality, so as to inspire confidence. Prosecution

witnesses must be reliable, trustworthy and dependable so that

by placing blind reliance on them, a person can be convicted.

Here prosecution witnesses are not reliable, trustworthy and

dependable.

14. It is submitted by Mr.Panchal, learned advocate for the

respondent-accused that PW No. 5 & PW No. 6 have deposed to

in their evidence that after the suspect was apprehended, he

was taken to Police Chawky in auto-rickshaw. They have stated

that while both of these witnesses were taking entry, they left

behind a suspect, shows total callous approach on their part

without even bothering that they had brought a suspect to police

chawky who had divulged before them that he was carrying

liquor bottle, allowing him to make his escape good. Not only

that suspect fled but also threw his belongings at Chawky. As

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admitted by PW No. 6 in para-3 of his cross-examinatino that

factum of suspect having fled was not informed by these 2 police

witnesses either to their Police Station or to Police Control room

immediately.

15. It is submitted by Mr.Panchal that their highly unnatural

conduct in leaving Police Chawky immediately by leaving behind

bags in unattended condition, without handing over to their

higher officer, colleague or subordinate officer raises serious

doubts. They did not even called-in more help from Police

Station. There is nothing on record to show that whether any

other Policeman was present at Chawky.

16. It is further submitted by Mr.Panchal that these 2 police

witnesses returned at Chawky after making search of that

suspect around 3:00 noon, thereafter by calling 2 panch

witnesses they drew Panchnama Exh. 27, whereby they came to

know that the bags contained Narcotics. Even thereafter also

these witnesses did not follow the provisions under 'the NDPS

Act', which are directory in nature.

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17. It is further submitted that even after drawing Exh. 27

Panchnama, these 2 police witnesses chose to call PI, who after

reaching started drawing another panchnama at 20:40 hrs- Exh.

28. During this time also the Charas- Narcotic substance was not

sealed by these 2 police officers as has been admitted by PW No.

5 in his cross in last line of para-6.

18. It is submitted by Mr.Panchal that PW No. 5 & PW No. 6 in

their complaint/FIR, police statements or in different Panchnamas

have not given description about the suspect. About the physic,

clothes worn by suspect, visible signs of suspect etc., are not

described anywhere.

19. It is submitted that though 2 police witnesses claim and

depose to have seen ID card of the suspect on 19.04.2000, that

ID card was not even subsequently seized by police from custody

of accused after his arrest. Nothing connecting the accused is

found by police from the bags which were allegedly thrown and

left by suspect at Police Chawky. Neither of panch witnesses to

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panchnama Exh. 27 & Exh. 28 as regards opening bags and

seizure of articles, are examined.

20. It is submitted that prosecution is placing heavy reliance on

3 TI parade panchnama to fix identity of accused. In that TI

parade accused was shown to be identified at hands of PW No. 5

and PW No. 6. It is humbly submitted that considering evidence

of Executive Magistrate who is examined as PW No.3, given the

fact that accused was already lodged at Central Jail, and the fact

that PW No. 5 & PW No. 6 were Police witnesses, TI Parade could

have been conducted in Jail. As has been admitted by PW No. 3,

accused were not produced before him by covering their face.

Manner in which TI Parade is held sounds highly doubtful. It is

also highly doubtful as to how IO -PI -PW No.9 came to know

about of 4 persons by NCB and why all of sudden he decided to

hold TI Parade.

21. As regards the 2nd TI Parade held by PW No. 3 by which

witness- auto rickshaw driver namely Nasirbhai Usmanbhai

identified accused on 25.07.2000, said rickshaw driver Nasirbhai

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is not examined by prosecution. As main crucial witness having

not been examined, TI parade at his hands would not assume

any importance.

22. Third TI Parade is held on 06.08.2000 by Executive

Magistrate PW No. 1 whereby 2 witnesses namely Pramodbhai

Natwarbhai and Jayminbhai Thakkar are said to have identified

the accused. Again, witness Pramobhai is not examined.

Whereas Jayminbhai Thakkar is examined as PW No. 7- Sunrise

Hotel owner. Mere close look at the evidence of PW No. 7(who is

an independent witness) shows that the prosecution story as per

his chief is that the accused had stayed at his Hotel. Whereas in

his cross he admits that the accused had come in capacity of

visitor to his Hotel to see other persons who had stayed at Hotel.

Further, nothing is spoken by this witness as regards the day,

date and time of either purported stay or purported visit by

accused. This witness completely pleads ignorance about

mentioning of name of accused in his Hotel register.

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23. Mr.Panchal, further submitted that FSL report -Exh. 34 is

pressed into service by prosecution to show that all clothes sent

(including seized from bag) to FSL are found to contain

perspiration-sweat of same person having 'B' group. FSL

examined clothes which police found from the bags left by

suspect with the clothes recovered vide Panchnama Exh. 32

drawn on 07.08.2000.

24. It is humbly submitted that FSL evidence is in realm of

opinion evidence. It is not conclusive evidence by placing

reliance on which a person can be convicted simpliciter.

25. It is submitted by Mr.Panchal that though prosecution is

placing implicit reliance on it, the same being developing

science, is full of errors and omissions. It is again a report which

can at best be relied on as opinion evidence. It can be used to

corroborate other proved circumstances. Here, in present case,

when main circumstance and aspect connecting accused with

crime having not been established, lie-detection opinion would

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seldom carry any value. Other independent material fails on all

counts to prove complicity of accused with crime.

26. It is submitted by Mr.Panchal that as per evidence of PW

No. 5, he was on patrolling duty alongwith 2 constables at

Sarangpur Circle where they intercepted auto-rickshaw. The

name of another constable as stated by PW No. 5 is Ashokkumar

Amratlal. Though he was with PW No.5 & PW No.6, for reasons

best known to prosecution, he is not examined.

27. It is submitted by Mr.Panchal that Incident is stated to have

occurred in broad day light in walled city area which is thriving

with many activities. It is a busy locality. Even then also no

independent witnesses are shown by prosecution to substantiate

its story like- stopping rickshaw, interacting with its passenger,

taking suspect and rickshaw to police Chawky, throwing away

bags at entrance of Police Chawky by accused, running away of

accused etc. The chain and sequence of events as projected by

prosecution appears illusory in absence of independent

witnesses.

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28. It is submitted by Mr.Panchal that the view arrived at by

the Trial Court and reasoning assigned by the Learned Judge

cannot be said to be perverse, not in conformity with evidence

on record, palpably wrong and demonstrably unsustainable. It

being only possible view, the Judgement and order of acquittal as

recorded by Learned Judge may kindly be confirmed.

29. Learned advocate, Mr.K.J.Panchal, appearing for the

respondent-accused has also relied upon the judgment of

Hon'ble Apex Court in the case of Sanjeev and Another V/s.

State of Himachal Pradesh reported in 2022 (6) SCC 294

and in the case of Mohinder Kumar V/s. State, Panaji, Goa,

reported in 1998 (8) SCC 655 and urged that when two views

are possible, the view, which is in favour of the accused, is

normally to be given approval by the higher Court and the

acquittal of the trial Court, unless the same is found to be

perverse, may not be reversed by the Court in appeal.

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30. This Court has taken the complete and comprehensive

appreciation of all vital views of the case and entire evidence on

record with reference to broad and reasonable opportunities of

the case. From the record of the case, it is evident that PW-5,

namely, Sabursinh, who was the Head Constable and PW-6,

Ashokkumar who is police constable both serving in the Kalupur

Police Station were on the patrolling duty on the day i.e.

19.4.2000 at around 11.30 a.m. These police constables while on

duty intercepted one auto rickshaw and on making the inquiry

from the passenger, who was sitting in the rickshaw, with regard

to from where he was coming, passenger replied that he is a

military man and also shown his identity card. Further inquiry

was made with regard to any offensive article carried in bag,

which was possessed by the passenger, the passenger replied in

negative. On further inquiry as to whether any liquor he is

possessing or not, the passenger replied that he had one bottle

with him. On suspecting about crime, PW-5 brought to the

nearest police chowky in the auto rickshaw and police constable,

Ashok Ganpatrav, was instructed to accompany with passenger

in auto rickshaw and this witness, Sabursinh had informed that

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he would go by walking. When rickshaw reached to the

Sarangpur Police Chowky, PW-5 & PW-6 taking entry from the

rickshaw left behind suspect instructing to come along with his

bag in the police chowky. Instead of following the instructions,

passenger threw away his bag at the police chowky and flee

away from the place. This occurrence took place at 11.30 a.m.

Thereafter, keeping the bag along with article in abandoned

condition at the police chowky, they had tried to chase and make

extensive search of the suspect nearby vicinity. They also made

inquiry with auto rickshaw driver regarding where passenger was

to drop. On revelation of driver, passenger had to go Hotel

Sunrise. PW-5 and PW-6 also went there but all efforts went in

vain. Around 3.00 p.m. when their duty was to over, they came

back to the police chowky and in presence of two panch-

witnesses, the bag was opened. There were 5 articles found in

bag. On opening first article, it was found that contraband

substance, namely, Charas lying in the bag. Thereafter, Police

Inspector , who is PW-9, Amrutbhai Desai, was also informed and

again panchnama was drawn in presence of panch-witness,

which started at 20.14 hours and completed at 23.00 hours

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charas was weighed and found to have 21 kgs. The Panchnama

was exhibited at Exh.28. The Police Officer in very casual manner

instructed the passenger to follow towards the police chowky.

Instead of escorting to the passenger who was having offensive

article as it was informed by the passenger, they left him in the

rickshaw with instructions to follow them. Even thereafter also,

FIR was registered at 23.30 hours i.e. in the night though they

had spotted the accused in the morning i.e. 11.30. Even prior to

registration of FIR, twice panchnama was drawn first by the

Police Constable and second by the Police Inspector. That on

finding the contraband article i.e. Charas, that was bounden duty

of the police officer to inform with regard to the substance to the

higher officer as per the provisions of 'the NDPS Act'. They did

not bother to inform to the police officer nor follow the procedure

prescribed under 'the NDPS Act'. This transpired the lethargic

approach of the police constable not only to chase the accused

persons but in fact for following the procedure under the Act. It is

admitted in the cross-examination that the passenger had

informed that he is military man and identity card was also

shown to him. Neither this identity card was part of muddamal

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nor his name was disclosed at the relevant point of time. This

creates doubt on the story of the prosecution with regard to the

accusation of the respondent-accused. The prosecution also fails

to prove the fact that where the accused had to go. At first

instance, the prosecution has tried to prove that passenger has

to go at Sunrise Hotel. Second instance story of staying in Hotel

was tried to be put and thereafter through witness Jayminbhai

prosecution came with the case that he went to meet guest

stayed in the Hotel. In any case, no register was seized by the

prosecution of Hotel.

31. The another important witness is auto-rickshaw driver.

From record it appears that on 27.06.2001, for issuing witnesses'

summons record was sent to criminal department by Hon'ble

Trial Court. Examination of all witnesses including IO got over by

03.10.2001. Thus for sufficient good period of time, witness- auto

rickshaw driver though served with witness's summons neither

appeared nor brought before Court. For reasons best known to

prosecution he is withheld. From records of case- Rojnama it

transpires that on 10.10.2001 prosecution moved an application-

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Exh. 44 for adjourning the case for absence of rickshaw driver,

though served with summons. Said application came to be

rejected. Immediately prosecution gave closing pursis -Exh. 45

declaring that it no longer proposes to examine any witness.

Order passed below Exh. 44 thus attained finality and it was not

carried further by challenging the same. Even in closing pursis no

reasons are stated as to why prosecution did not want to

examine further witnesses. It is on the contrary observed by the

learned Judge in para- 12 of Judgement that in the departmental

proceedings which were conducted against PW No.5 & PW No.6,

statement-deposition of rickshaw driver came to be recorded but

somehow he has not turned up at trial.

32. The prosecution had also relied upon the Test Identification

Parade to fix the identity of the accused. To prove the case

through T.I. Parade, the prosecution has examined the Executive

Magistrate, PW-1, Sureshchandra Dixit and Sartanji Valaji Darbar,

Executive Magistrate, PW-3. Through these witnesses, the

prosecution had attempted to prove the identity of the accused

person. T.I. Parade was held thrice by two Executive Magistrates.

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First T.I. Parade was held on 22 nd July, 2000 where two witnesses

were called to identity the accused, namely, Sabursinh and

Ashokkumar, both have identified the accused in T.I. Parade. The

second T.I. Parade was conducted on 25 th July, 2000 where

witness, Nasirkhan, who is rickshaw driver had identified the

respondent-accused in the T.I. Parade. This Nasirkhan was not

examined by the prosecution, who was the independent witness.

Thereafter again on 6.8.2000, T.I. Parade was held where one

Pramodbhai Natvarbhai who was the Manager of Sunrise Hotel

and other witness, namely, Jayminbhai Thakkar, who was owner

of Sunrise Hotel identified by the accused in T.I. Parade, where

only Jayminbhai put in witness box to depose in the cross

examination of this witness that he admitted that prior to

accused, witnesses have already reached. The face of the

accused was not covered with mask, when he come to the office.

Out of these witnesses, Pramodbhai Natvarbhai was not

examined by the prosecution. However, Jayminbhai Thakkar, PW-

7 was examined. In chief as well as in his cross-examination of

PW No. 7 specifically says that Police had shown him a person

and had asked as to whether that person had stayed in his Hotel

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or not. Meaning thereby, much before TI Parade is held, the

police had already shown accused to this witness. Thereby

evidentiary value of TI Parade at the hands of witness is

completely lost. The accused person was arrested on 25.7.2000.

Through transfer warrant, he was sent to the Central Jail and

after 3 months, suddenly, T.I. Parade was held. This also creates

doubt with regard to the trustworthiness of Test Identification

Parade. Therefore, learned Sessions Court has rightly not

believed the evidence of the witnesses with regard to the

identity of the accused in the T.I. Parade.

33. The prosecution has also heavily relied upon on the

panchnama where muddmal was seized. However, no any

panchas were examined during the trial to prove the panchnama

of the muddamal. In fact, from the deposition of the PW-5, it

transpired that muddamal was lying in unattended condition at

the police chowky from 11.30 a.m. to 3.00 p.m. In fact, before

registering FIR at 23.30 hours, panchnama regarding the seizure

of the muddamal drawn, shows lapse on part police officer

following the procedure under 'the Code'. The time regarding

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panchnama which is mentioned is that first panchnama at 3.00

p.m. by the constable in the presence of two panchas and the

second panchnama was continued from 20.40 to 23.00 hours, for

quite long time reasons is also not explained by the prosecution.

Therefore, the learned trial Judge has rightly discarded the

evidence of the seizure of muddamal as the same is not inspiring

the confidence.

34. The prosecution had relied on the report of the FSL

regarding clothes which is exhibited at Exh.34 wherein the

clothes sent (including seized from bag) to FSL are found to

contain perspiration - sweat of same person having 'B' group.

This evidence help to police officer may be used as a

corroborative evidence. But this Report of the FSL independently

cannot be replaced as a substantive piece of evidence and

cannot form the basis of conviction, therefore also, the learned

trial Court had rightly not believed it.

35. The prosecution had also relied upon the report of Lie

Detection Test where it is opined that accused is not disclosing

the true facts. At the most this Report of the Lie Detection gives

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an idea that whether the Investigating Officer had investigated

the offence in right direction or not. But to form conviction, sole

basis of the Report cannot be made. Therefore, learned Trial

Judge has rightly not relied upon the same.

36. It is further required to be noted that though 11.30 a.m. -

rickshaw along with suspect spotted and brought at chowky, no

verification of baggage took place upto 3.00 p.m., that too, by

the Head Constable who spotted him. Though suspect / accused

ran away leaving baggage, Head Constable did not inform

immediately checked the baggage, instead roamed here and

there in search of him, as claimed. Despite that at 3.00 p.m., he

carried out search of baggage and found charas, he did not

inform his superior immediately, not informed about suspect /

accused gave a slip to him and ran away, either to control room

or even the police station so as to have blockade at the exit

gates to round up the accused.

37. After analysing, sifting and assessing the the evidence on

record with particular reference to its trustworthiness and

truthfulness by a process of dispassionate judicial scrutiny, this

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Court find that there was no evidence to connect the accused

with the crime. Prosecution failed to prove the case beyond the

reasonable doubt, therefore, respondent is entitled to benefit of

doubt. As propounded by the Supreme Court, every accused is

entitled to benefit of reasonable doubt regarding his guilt and

when the trial court acquitted him, he would retain that benefit

in the appellate court also. In our view, acquittal of the

respondent can hardly be regarded as illegal or erroneous on the

basis of evidence on record.

38. We have gone through the ratio laid down in the decision of

the Apex Court in the case of Harijana Thirupala and others

V/s. Public Prosecutor, High Court of A.P. reported in AIR

2002 Supreme Court p. 2821 and in the case of Kunju

Mohammed V/s. State of Kerala reported in JT 2003 (7) SCC

114 .The Apex Court has held as under:

"Doubtless the High Court in appeal either against

an order of acquittal or conviction as a Court of first

appeal has full power to review the evidence to

reach its own independent conclusion. However, it

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will not interfere with an order of acquittal lightly or

merely because one other view is possible, because

with the passing of an order of acquittal

presumption of innocence in favour of the accused

gets reinforced and strengthened. The High Court

would not be justified to interfere with order of

acquittal merely because it feels that sitting as a

trial Court would have proceeded to record a

conviction: a duty is cast on the High Court while

reversing an order of acquittal to examine and

discuss the reasons given by the trial court to acquit

the accused and then to dispel those reasons. If the

High Court fails to make such an exercise the

judgment will suffer from serious infirmity."

39. This Court has also considered the ratio laid down by the

Apex Court in the case of Jafarudheen and others V/s. State

of Kerala reported in (2022) 8 SCC 440 more particularly para-

25, which is reproduced herein below.

"25. While dealing with an appeal against

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acquittal by invoking Section 378 of the Cr.PC,

the Appellate Court has to consider whether

the Trial Court's view can be termed as a

possible one, particularly when evidence on

record has been analyzed. The reason is that an

order of acquittal adds up to the presumption

of innocence in favour of the accused. Thus, the

Appellate Court has to be relatively slow in

reversing the order of the Trial Court rendering

acquittal. Therefore, the presumption in favour

of the accused does not get weakened but only

strengthened. Such a double presumption that

enures in favour of the accused has to be

disturbed only by thorough scrutiny on the

accepted legal parameters".

40. This Court has also gone through the decision rendered in

the case of Subramanya V/s. State of Karnataka made in

Criminal Appeal No.242 of 2022 decided on 13.10.2022,

wherein, Hon'ble Apex court has held in paragraph No.46, as

under:

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"46. Having gone through the entire

impugned judgment passed by the High Court,

we do not find any satisfaction recorded

therein that the findings of the trial court are

palpably wrong, manifestly erroneous or

demonstrably unsustainable. In the absence of

such satisfaction, the High Court, in our

opinion, should not have disturbed a well-

reasoned judgment of acquittal, passed by the

trial court. We shall assign reasons hereafter

why the High Court should not have disturbed

the acquittal recorded by the trial court".

41. This Court has also gone through the decision rendered by

the Supreme Court of India in the case of Ramesh Babulal

Doshi vs The State Of Gujarat reported in 1996(9) SCC 225

para-7 reproduced herein below.

"7. Before proceeding further it will be pertinent to

mention that the entire approach of the High Court

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in dealing with the appeal was patently wrong for it

did not at all address itself to the question as to

whether the reasons which weighed with the trial

Court for recording the order of acquittal were

proper or not. Instead thereof the High Court made

an independent reappraisal of the entire evidence

to arrive at the above quoted conclusions. This

Court has repeatedly laid down that the mere fact

that a view other than the one taken by the trial

Court can be legitimately arrived at by the appellate

Court on reappraisal of the evidence cannot

constitute a valid and sufficient ground to interfere

with an order of acquittal unless it comes to the

conclusion that the entire approach of the trial

Court in dealing with the evidence was patently

illegal or the conclusions arrived at by it were wholly

untenable. While sitting in judgment over an

acquittal the appellant Court is first required to seek

an answer to the question whether the findings of

the trial Court are palpably wrong, manifestly

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erroneous or demonstrably unsustainable. If the

appellant Court answers the above question in the

negative the order of acquittal is not to be

disturbed. Conversely, if the appellant Court holds,

for reasons to be recorded, that the order of

acquittal cannot at all be sustained in view of any of

the above infirmities it can then - and then only -

reappraise the evidence to arrive at its own

conclusions. In keeping with the above principles we

have therefore to first ascertain whether the

findings of the trial Court are sustainable or not".

42. It is, therefore, clear from the law laid down by the Apex

Court, that the Court in acquittal appeal will be loathe in

interfering with the findings of fact arrived at by the learned trial

Judge on scrutiny of evidence on record and, when two views are

possible even on re-appreciation of evidence, benefit of doubt

must go in favour of the accused as per the settled law, and

therefore, in the present case, no infirmity in appreciating the

evidence by the learned trial Judge is found and, therefore, the

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order of acquittal passed by the learned trial Judge does not

require any interference by this Court.

43. In the result, the appeal fails and is dismissed. Muddamal

to be disposed of in terms of the directions given by the learned

Judge in the judgment impugned in the appeal. Bail bond stands

cancelled.

(UMESH A. TRIVEDI, J)

(M. K. THAKKER,J) ASHISH M. GADHIYA