D. K. TRIVEDI, J. ( 1 ) THE appellant State of Gujarat has preferred this appeal challenging the order of acquittal dated 2nd June, 1984, recorded by learned Additional Sessions Judge, Morbi acquitting the respondent accused from the offences under Sections 302, 457 and 324 of the IPC as well as from the offence under Section 135 of the Bombay Police Act while disposing of Sessions Case No. 5 of 1984 and the appeal was admitted by issuing bailable warrant against the respondent accused as per order dated 12th December, 1984. ( 2 ) WE have heard Mr. K. C. Shah, learned Addl. PP for the appellant State of Gujarat and Mr. H. J. Shah, learned advocate for the respondent accused. ( 3 ) DURING hearing Mr. K. C. Shah, learned Addl. P. P. has taken us through the paper book consisting of oral as well as documentary evidence and the judgement under challenge and according to him that in light of the evidence led by the prosecution, the learned trial Judge was not right in acquitting the respondent accused when the prosecution has examined the witnesses, who are not merely the witnesses to the incident but some of the witnesses had even received injuries in the incident and the complainant and other witnesses, who had sustained injuries in the incident, are none else but in close relation with deceased Rahima as well as the respondent accused - husband of Rahima and the reasoning of the learned trial Judge has resulted into miscarriage of justice. ( 4 ) MR. H. J. Shah, learned advocate who appeared on behalf of the respondent accused has vehemently urged that this being an acquittal appeal and in light of the decision of the Apex Court, this Court will not interfere in an order of acquittal recorded by the learned trial Judge. ( 5 ) AFTER the arguments were over, it was brought to our notice that Randp is missing and accordingly, record was not available for our perusal and though the arguments were concluded, we have kept the judgement reserved by directing the Registry to make the Randp available for our perusal and accordingly, by making sincere efforts by the office, the office has brought to our notice that Randp was found and it was mixed up with other records of the Randp Section and an explanation was rendered as per our direction. ( 6 ) AFTER the Randp was made available and as the judgement was kept reserved, my brother justice Shah has forwarded the judgement for my approval for pronouncement of the judgement. In normal course, after the judgement is kept reserved, when the arguments are heard, the matter is to be discussed amongst two brother Judges in respect of the submissions made before the Court as well as to consider the evidence led by the prosecution and to examine the judgement under challenge and acquittal appeal is required to be dealt with in light of the decision of the Apex Court as per the guidelines indicating how to deal with the acquittal appeal. I have also discussed with brother Justice Shah and in light of the evidence led by the prosecution and contentions raised before us and the judgement under challenge, I had expressed my view that this being an acquittal appeal and in light of the evidence as appreciated by the learned trial Judge, when the learned trial Judge has while acquitting the accused has given benefit of doubt and as per the guidelines of the Apex Court, this is not a case in which, the order of acquittal requires any interference. However, according to brother Justice Shah that acquittal appeal filed by the State deserves interference in the order of acquittal recorded by the learned trial Judge. On going through the reasoning of brother Justice Shah while reversing the judgement of acquittal into conviction, for which, it is difficult for me to agree with the views expressed by brother Justice Shah. I give my separate judgement by expressing descending view, keeping in mind the principles laid down by the Apex Court while dealing with the acquittal appeal. In my view that on going through the judgement under challenge, the learned trial Judge has given cogent reasons while appreciating the evidence of the prosecution witnesses and when the learned trial Judge has on appreciating the evidence has found that the prosecution has failed to prove the case and thereby, while acquitting the accused, has given benefit of doubt to the accused, the acquittal appeal filed by the State deserves to be dismissed and it is difficult for me to agree with brother Justice Shah that the learned trial Judge was not right in appreciating the evidence led by the prosecution. ( 7 ) ON going through the evidence, it is necessary for me to highlight some of the admitted facts in respect of the relation between the accused and deceased Rahima. Deceased Rahima was married to respondent accused Abhram and out of their marriage, they have five children, out of which, 3 were daughters and 2 were sons and all of them were residing at Kandla. The other relation with accused is that mother of accused Abhram is the real sister of Halimaben. Considering this relation in back ground, accused Abhram is son of real sister of Halimaben and such marriage is permissible in Muslim community being a marriage with cousin sister. It is further borne out from the evidence that another son of Halimaben and real brother of deceased Rahima is also married to real brother of accused Abhram. The complainant Sumer Siddi is the real brother of deceased Rahima and son of Halimaben. Due to this close relation, the accused and their family members were used to visit the house of Halimaben at Navlakhi. It is further found from the evidence that deceased Rahima had also come to the house of her mother Halimaben at Navlakhi on previous "muharram". It is found from the evidence that incident in which, Rahima was assaulted, it was a day of "muharram" and the incident in question has occurred on 15. 10. 1983 at mid night at the house of complainant at Navlakhi. According to the prosecution, deceased Rahima with her children had come from Kandla by train on the previous day of incident at the house of her mother at Navlakhi with all ornaments. As per the prosecution case that on the mid night of 15. 10. 1983, the accused had illegally entered in the house of the complainant by removing the iron sheet on the roof of the house by jumping in the house and inflicted knife blow on Bai Rahima and caused injuries to Rahima, which resulted into death and while causing such injuries, the accused had knowledge that such injuries were so serious, which will result into death. It is the prosecution case that the accused has also caused injury to Halimaben - mother of the deceased Rahima as well as assaulted Sumer Siddi real brother of deceased Rahima with knife, having sharp edged weapon. It is the prosecution case that the accused has also caused injury to Halimaben - mother of the deceased Rahima as well as assaulted Sumer Siddi real brother of deceased Rahima with knife, having sharp edged weapon. On the complaint being filed before the police and after investigation of the said complaint, the police has submitted chargesheet against the respondent accused for the offence under Section 302, 457 and 324 of the IPC as well as for the offence under Section 135 of the Bombay Police Act. As the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case for trial before the Sessions Court and the accused was accordingly, placed for trial as aforesaid before the learned Additional Sessions Judge, Morbi. The defence of the accused is of total denial and further of alibi. ( 8 ) TO prove the case against the accused, the prosecution has in all examined 28 witnesses, out of which, the complainant Sumer Siddi - PW-14, who has also received injury, is the real brother of deceased Rahima, and injured witness Halimaben PW-10, who is real mother of deceased Rahima. To prove the medical evidence regarding injury on Rahima, the prosecution has examined Dr. Sukhdev, PW-1, who had examined the injured Rahima on 15. 10. 1983 and PW-2 Dr. Laxman M. Patel, who had performed the PM Examination on the dead body of Bai Rahima on 15. 10. 1983. Out of these 28 witnesses, the prosecution has examined the witnesses in respect of the panchnamas of scene of offence etc. and neighbour - Smt. Valiben and Police Officers in respect of the investigation of the case in respect of the complaint filed by PW-4 Sumer Siddi. Learned trial Judge on considering the evidence led before him and in light of the defence of the accused, has recorded finding that the prosecution has failed to prove the case against the accused by giving reasons of his appreciation on the evidence, by giving benefit of doubt to the accused. Learned trial Judge on considering the evidence led before him and in light of the defence of the accused, has recorded finding that the prosecution has failed to prove the case against the accused by giving reasons of his appreciation on the evidence, by giving benefit of doubt to the accused. According to learned trial Judge that as the incident in question has taken place during the night hours and as found from the evidence, the witnesses have not recognized the assailant, there was no motive to commit murder of Rahima, as the relation between the accused and all other family members were cordial and further that even the maintenance proceeding, which was initiated by Sarifa against her husband, in which, the accused has helped them and such maintenance proceeding was initiated by her before 2 to 3 months to the incident. It is further found from the evidence that other son-in-law of Halimaben was not on good terms with the family of the deceased against whom, the maintenance proceeding was initiated by Sarifa and even the criminal complaint was filed for assaulting Halimaben, when Halimaben used to go for receiving pension of her husband from the Treasury Office. The FIR of incident, though filed on the same day i. e. on 15. 10. 1983, the same has reached to the court of the learned Magistrate after 4 days and the learned trial Judge has also considered one of the ground for acquittal, on the ground of delay in sending the FIR. ( 9 ) MR. K. C. Shah, learned Addl P. P. has vehemently urged that as proved from the evidence, presence of the witnesses are natural in their house when the incident is occurred in the mid night and deceased Rahima was being assaulted by the accused and not only the assault was restricted to Rahima, the accused had also assaulted Halimaben - mother of deceased Rahima as well as complainant Sumer - brother of deceased Rahima. It is the submission of Mr. Shah that the witnesses are closely related and they will not falsely implicated their son-in-law / brother-in law nor they would allow the real culprit to get scot-free, if the culprit is someone other than the respondent - accused. Mr. It is the submission of Mr. Shah that the witnesses are closely related and they will not falsely implicated their son-in-law / brother-in law nor they would allow the real culprit to get scot-free, if the culprit is someone other than the respondent - accused. Mr. Shah while taking us through the evidence of prosecution witness namely PW-6 - Sarifa, younger sister of the deceased and PW-10 Halimaben mother of the deceased, it is his contention that they were sleeping in their own house and accused was known to them and when the accused had while removing the roof, jumped in the house, they have recognized the accused as a murderer of Rahima and further that Halimaben PW-10 and his son Sumer have also received injury at the hands of the accused and on this evidence, the learned trial Judge was not right in discarding their evidence. He next urged that the learned trial Judge has given undue importance in respect of delay of 4 days in reaching the FIR to the Court of the learned Magistrate and other minor things like sleepers and wrist watch, which were found on the scene of offence, as according to the prosecution, the said articles were belonging to the accused. Mr. Shah has while explaining the delay of 4 days in reaching the FIR to the Court of learned Magistrate, it is his submission that as per the prosecution case, the incident in question has occurred on 15. 10. 1983 at mid night and the complaint was filed by Sumer Siddi on 15. 10. 1983. 16. 10. 1983 was Sunday and on 17. 10. 1983, there was public holiday being "muharram" and the FIR has reached to the court of the learned Magistrate on 19. 10. 1983, for which no fault can be attributed against the investigation. According to Mr. Shah that even the conduct of the accused suggests that he was guilty, as he was absconding till he was arrested by police on 3. 11. 1983 and more particularly, his wife was murdered, who is not stranger to the accused. According to Mr. Shah that the order of acquittal recorded by the learned trial Judge deserves to be set aside and the accused be convicted for the offence of murder of his wife. ( 10 ) MR. H. J. Shah, learned advocate representing the respondent accused has supported the judgement under challenge. According to Mr. Shah that the order of acquittal recorded by the learned trial Judge deserves to be set aside and the accused be convicted for the offence of murder of his wife. ( 10 ) MR. H. J. Shah, learned advocate representing the respondent accused has supported the judgement under challenge. It is his contention that when the learned trial Judge has while appreciating the evidence of the prosecution witnesses, has not accepted the prosecution case and given cogent reasons, while giving the accused benefit of doubt, this court will not turn such order of acquittal by reversing the same, in light of the settled legal position as per the guidelines of the Apex Court and according to him, that this being an acquittal appeal, this is not the order, where this court is require to interfere by allowing the appeal and convert the order of acquittal into conviction. Mr. Shah has also vehemently urged that the learned trial Judge has discussed the entire evidence led by the prosecution and considering each evidence led by the prosecution, has given cogent reasons by not accepting the such evidence and according to Mr. Shah that no interference is required in an acquittal appeal filed by the State and prayed for dismissal of the appeal. ( 11 ) AS discussed earlier, it is an admitted facts in the present case that deceased Rahima with her children had come from Kandla at the house of her mother at Navlakhi on the previous day of incident. Accused Abhram is son of real sister of Halimaben - mother of deceased Rahima and Abhram was married to Rahima. The relation between both the families were cordial and they used to visit with their children at Navlakhi and it is further borne out that accused was also helping her mother-in-law and other family members and it is also found from the evidence of Sarifa, younger sister of deceased Rahima that she has initiated maintenance proceeding against her husband before the Court at Gandhidham, in which the accused had also helped them and for filing such proceeding, the accused, her sister - deceased Rahima, her mother - Halimaben and witness i. e. Sarifa had attended the court. It is further borne out that younger sister Sarifa after her marriage, she had left the husbands house and came to reside with her mother and brother at Navlakhi. It is further borne out that younger sister Sarifa after her marriage, she had left the husbands house and came to reside with her mother and brother at Navlakhi. As borne out from the evidence of Sumer Siddi - brother of deceased Rahima that he had attended "mazlish" on that night and he was sleeping outside the house, while the incident of assault has taken place inside the house and he has not seen the assault on her sister Rahima as well as on her mother Halimaben. So far as injury found on him, it is further borne out from his evidence that he has admitted that he has not seen the face of assailant and he has seen only the back portion of the assailant. It is further found from his evidence that he learnt the name of assailant from his mother Halimaben. Considering the evidence of complainant, Sumer Siddi when according to him he came to know the name of the assailant from his mother Halimaben, it is necessary to examine the evidence of Halimaben, who is also an injured witness and as found from her deposition that she become unconscious when she received one blow from the assailant and she has regained her consciousness after 3 days. In light of this evidence, on one hand complainant Sumer has not seen the assailant and he has gathered the fact of assault and name of assailant from his mother Halimaben, while according to the evidence of Halimaben, immediately after, she sustained one blow, she become unconscious and she regained her consciousness after 3 days and therefore, the evidence of Sumer as well as Halimaben require close scrutiny. ( 12 ) IN light of the contentions raised in respect of delay in reaching the FIR before the Court of learned Magistrate, as found from the original record that complaint of Sumer Siddi was dated 15. 10. 1983, which he has given at 7-00 AM. The copy of said complaint has sent to the Court of learned Magistrate on 19. 10. 1983, which was received in the Court at 3-00 PM i. e. after 4 days. The defence has contended that the accused was falsely implicated by fabricating the story, in a serious offence of murder and also contended that the investigation of the case is not proper. 10. 1983, which was received in the Court at 3-00 PM i. e. after 4 days. The defence has contended that the accused was falsely implicated by fabricating the story, in a serious offence of murder and also contended that the investigation of the case is not proper. It is also to be noted that Valiben, who was the neighbour, who was the first lady, had raised shout when someone was found on the house of her roof and according to her, the person, who was found on the roof was thief and accordingly, while raising shout, she has warned Halimaben by shouting get up get up, thief thief. Valiben has not seen the person, who was found on the roof and admittedly, after the accused was arrested, no identification parade was held to put the accused for identification before the witness Valiben. No cloths of the accused were seized as well as no blood stains were found on the weapon. The family members of deceased Rahima were very much interested in securing the conviction of the respondent accused. It is also borne out from the evidence that when Rahima had visited the house of her mother at Kandla before about one and half month to the incident at the time of initiating the maintenance proceeding against the husband of Sarifa - younger sister of deceased, where the husband of deceased - present respondent had also helped them while taking them in the court for claiming maintenance against the husband of Sarifa and at that time, deceased Rahima had not disclosed that her husband i. e. present respondent is suspecting her character and even on the previous night of the incident, when deceased Rahima with her 5 children came from Kandla to Navlakhi, she had not disclosed before her mother Halimaben that her husband is suspecting her and this part of the story is only found from the evidence of PW -6 Sarifa, when according to her, during the night time, when her sister Rahima had visited with her children, she has disclosed this fact that her husband is suspecting regarding her character. ( 13 ) IN light of these evidence led by the prosecution, which I will discuss the evidence in brief and keeping the principles laid down by the Apex Court in dealing with the acquittal appeal, as per the decision of the Apex Court in the matter of RAMESH BABULAL DOSHI VS. STATE OF GUJARAT, reported in AIR 1996 SC p. 2035, wherein, the Supreme Court has given guidelines in para - 7, which I reproduce as under :-"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court 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 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. "keeping in mind the ratio laid down by Apex Court and this being an acquittal appeal and as per the prosecution case that on the night of 15. 10. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not. "keeping in mind the ratio laid down by Apex Court and this being an acquittal appeal and as per the prosecution case that on the night of 15. 10. 1983 at the house of Halimaben at Navlakhi, the respondent has trespassed and entered in the house of Halimaben by removing the iron sheet from the roof and jumped in the house and assaulted deceased Rahima, who is wife of the accused and also assaulted Halimaben and complainant Sumer Siddi, the learned trial Judge has on appreciating the evidence, found that the prosecution has failed to prove the case and the learned trial Judge has by giving cogent reasons, acquitted the accused by giving benefit of doubt. As observed by the Supreme Court, in an acquittal appeal, the High Court has to examine that while acquitting the accused, whether the learned trial Judge has committed any error while appreciating the evidence and whether the reasoning of the learned trial Judge is so perverse, for which, any interference is required by setting aside the order of acquittal into conviction. The learned trial Judge has discussed the evidence of all witnesses in detail and further that the complainant on that night, was sleeping outside the house and as per the admission made by the complainant, he was awaken by her mother and she told him that the accused has assaulted her sister and her mother. The complainant has in term admitted that he has not seen the actual assault on his sister as well as on his mother and the name of the assailant was given by his mother. ( 14 ) PW-6, Sarifa has left her husbands house and she was residing with her mother and brother at Navlakhi. As per the evidence of Sarifa, the incident in question has occurred at mid night at 2-00 AM. Sarifa has not seen when iron roof was removed. However, according to her that the accused has jumped inside the Fali and she saw knife in his hand and she has also tried to catch hold of her sister and further she had gone to the house of Valiben, who is residing nearby her house and she has informed Valiben that her sister is being assaulted. However, according to her that the accused has jumped inside the Fali and she saw knife in his hand and she has also tried to catch hold of her sister and further she had gone to the house of Valiben, who is residing nearby her house and she has informed Valiben that her sister is being assaulted. Even she has not disclosed the name of assailant to Valiben. However, according to Sarifa, accused has murdered her sister Rahima with knife and thereafter, accused has dragged her and brought her outside. It is also found from her evidence of Halimaben and Sumer were gone for rescue and they have also sustained injury with knife blow from the accused. According to Sarifa, her sister Rahima came by train on the previous night of the incident from Kandla to Navlakhi with all her five children and her sister Rahima had told her that accused is suspected on her about her character. ( 15 ) PW-6, Sarifa has in term admitted that her marriage has taken place with Hussain Mahmad and because of quarrel with her husband, she left the house of her husband before 4 years and since then, she is residing at Navlakhi with her mother and brother. She has further admitted in cross-examination that her husband has assaulted her mother Halimaben with stick and he has given threats to her mother that he will kidnapped (take away) Sarifa. She has further admitted that she has filed maintenance proceedings against her husband before one and half month to the incident before the Gandhidham Court and at that time, she along with her sister Rahima and accused had gone to Gandhidham and the fees of the advocate was paid by the accused. She has further admitted that at that time, her sister Rahima has not told her that accused is suspecting her. Her another brothers Daud and Hasam had gone to village Tunamandi and the accused Abhram is also belonging to village Tunamandi. She has also in term admitted that Noor Mahmad and her husband were head strong persons. She has denied the suggestion that Hussain Noor Mahmad came with other persons twice to thrice to kidnapped (take away) her at Navlakhi. Her sister Rahima has not disclosed the name of person, to whom the accused was suspecting her. She has also in term admitted that Noor Mahmad and her husband were head strong persons. She has denied the suggestion that Hussain Noor Mahmad came with other persons twice to thrice to kidnapped (take away) her at Navlakhi. Her sister Rahima has not disclosed the name of person, to whom the accused was suspecting her. As found from her cross-examination that on the day of incident, the doors situated at Fali were open and her brother was sleeping near the house of Mukundbhai just near the doors. She has further admitted that if the person, who was sleeping in the Osari, they cannot see the iron roof. It is further found that when she heard some voice that some body has jumped inside, she came out from her house and gone to the house of Valiben and she has admitted that she along with Valiben had gone to call Sale Mohmad and others and when they returned, at that time, the person, who had assaulted her sister had run away. She has in term admitted that she had not seen what had happened inside the room. She has further admitted that accused is liked by every one in her family and prior to the incident, they have no ill-feeling or dispute against the accused. She had denied that on the date of incident, her husband Hussain and their men had come to kidnapped (take away) her. ( 16 ) ANOTHER injured witness examined by the prosecution namely Halimaben - PW-10 is mother of deceased Rahima. She is an old lady aged about 60 years. She is having four sons and three daughters. Except her elder son Aliyas, all the three sons were residing with her at Navlakhi. Rahima was married to accused - Abhram, who is her sisters son and they are residing with their children at Kandla. Rahima with their children had come from Kandla to Navlakhi by train on the previous day of the incident at night. On the day of incident, she was sleeping near her two daughters in Osari and children of Rahima were also sleeping in an Osari nearby her. She heard the shout from Valiben - her neighbour, that some body has climbed on the roof of her house and accordingly, she woke up and gone to call her son. On the day of incident, she was sleeping near her two daughters in Osari and children of Rahima were also sleeping in an Osari nearby her. She heard the shout from Valiben - her neighbour, that some body has climbed on the roof of her house and accordingly, she woke up and gone to call her son. Thereafter, Abhram has removed the iron roof and jumped inside the house, having knife in his hand. On seeing the knife on the hand of Abhram, her daughter Sarifa, ran away from the house and went to Valibens house and Abhram had started inflicting knife blow on Rahima. She went towards her son Sumer and accused Abhram came out with Rahima by assaulting her. She has tried to catch hold the accused and the accused gave blow on her left hand. Her son Sumer awaken. He also tried to catch hold of accused and the accused has also assaulted him with knife. Thereafter, Valiben and all were gathered. Ghanshyam, Abu Kala, Gajubha Bapu were also came. Thereafter, the witness along with Rahima were taken in lorry to a Government hospital at Navlakhi. It is found from her evidence that one blow of knife was given by assailant on neck of her daughter and one blow on the chest while the third blow was on the left side of her nose and fourth blow was on the left hand wrists on the back portion. There were bleeding from the wounds. Near the place of incident, the sleepers and wrist watch of Abhram were also found i. e. article Nos. 3 and 4 respectively and the witness has identified the same. She has stated that in her house, there is an electric connection and on that night, lights were on in the house as well on Osari. The witness was taken to hospital at Navlakhi and as per the advice of the doctor, she was take at Morbi in the rickshaw of Batuk, where, she was treated in government hospital for about 3 days. Her elder son, Aliyas was residing at Kandla and his marriage has taken place with sister of accused Abhram. In cross-examination, she has admitted that Sarifa her second daughter had married to Hussain and she was driven out by her husband. Her elder son, Aliyas was residing at Kandla and his marriage has taken place with sister of accused Abhram. In cross-examination, she has admitted that Sarifa her second daughter had married to Hussain and she was driven out by her husband. For receiving pension of her husband, she used to come at Treasury office at Gandhidham, which is situated on the first floor, and the police station is situated on the same building at the ground floor. She has admitted that prior to the incident, about 2 to 3 months before near police station, she was assaulted by Hussain Mahmad and Noor Mahmad had also given threats to kill her and she has filed complaint against Noor Mahmad. Hussain Mahmad had having big family and they are head strong persons. In respect of maintenance proceedings initiated by Sarifa against her husband at Gandhidham Court, it is also found from her evidence that about 4 to 5 months prior to the incident, a maintenance proceeding was filed at Gandhidham Court by her daughter Sarifa and for filing such proceedings, she along with her daughter Sarifa, Rahima and accused Abhram had gone to Gandhidham. It is further found from her evidence that after filing maintenance proceedings by her daughter Sarifa, in between her daughter Rahima had not visited Navlakhi and Rahima had not told her that her husband is suspecting her nor she was told by any other persons. Her daughter Sarifa has not told her before the incident at any time. It is further found from her deposition that Rahima had also come to her house on the previous day of "muharram" with ornaments worth about Rs. 15,000 to 20,000. In the cross-examination, she has admitted that after the first blow received by her, she become unconscious and she had regained her consciousness after 3 days and further that till she regained consciousness, she has not talked to any person in respect of the incident. She has admitted that her son Sumer was sleeping outside the house, near the house of one Shri Patel. She has further admitted that her son Sumer was sleeping outside the house near the house of Shri Patel. It is further found from her evidence that when she had gone to awake her son at that time, Abhram was not inside the house. She has further admitted that her son Sumer was sleeping outside the house near the house of Shri Patel. It is further found from her evidence that when she had gone to awake her son at that time, Abhram was not inside the house. It is further found from the cross-examination that Abhram has assaulted and dragged her daughter and brought her outside, at that time, she was standing near the door and her son Sumer was also standing near the door. It is further found that she has admitted that she has not stated in her police statement that after assault, accused has ran away. It is further found from her evidence that she has in term admitted that prior to the incident, she has no ill-feeling against accused. She has denied the suggestion that Hussain, husband of Sarifa had come to take away Sarifa for about 2 to 3 times. ( 17 ) AS found from the evidence of Sumer Siddi - PW - 4. He is residing at Navlakhi and doing labour work. His elder brother Aliyas is married to Babiben, who is real sister of accused. His mother Halimaben and accuseds mother are real sisters. He and Daud are staying at Navlakhi and other two brothers staying at Kandla. At the time of incident, he was alone at Navlakhi, as Daud had gone for procession of "taziya" in Muharram. Her sister Rahima was married to Abhram and she was residing with her husband and children at Kandla and on the previous day of the incident, she came from Kandla to Navlakhi by train with her children. On the day of incident, he was sleeping outside the house. He had gone to attend "mazlish" i. e previous night of Muharram and he returned at his house at about 10-00 to 10-30 night. He heard cries "save" "save" and accordingly, he saw that her sister is being assaulted. He tried to catch hold of the person and he was assaulted with knife and the assailant ran away in dark. His mother told that Abhram has assaulted with knife to his sister. His mother and sister were fallen down and there were bleeding from the injuries. His neighbourers were also gathered after the accused ran away. He tried to catch hold of the person and he was assaulted with knife and the assailant ran away in dark. His mother told that Abhram has assaulted with knife to his sister. His mother and sister were fallen down and there were bleeding from the injuries. His neighbourers were also gathered after the accused ran away. He along with his sister, his mother were taken to hospital, where the doctors have cleaned the wound and went to take injection, at that time, his sister died. In respect of the incident, he gave his complaint on the same night at Maliya, while going in a vehicle of Port from Navlakhi to Maliya. Along with him, Gajubha Jadeja, Head Constable was also present and his complaint was recorded at Maliya by Jadeja Saheb. The Medical Officer at Navlakhi has treated him as well as his mother. The police were called and taken to the house of Gajubha and Gajubha was told about, what transpires to his sister and Gajubha has told him to take them at the hospital. He is illiterate person and accordingly, he has put his thumb impression on his complaint at Navlakhi. He has identified the wrist watch and sleepers found at the place of incident, is of accused Abhram. As found from the cross-examination, he has in term admitted that Sarifa her sister is driven out by her husband and maintenance proceedings is filed by her at Gandhidham Court. He has admitted that his relation with accused were cordial and till the incident, their relations were cordial and they used to visit the house of each other. His younger brother Daud had gone to the house of accused for celebrating "muharram". He has admitted that on the day of incident at night, he was sleeping outside his house. He has further admitted that he came to know that the assailant is Abhram from his mother before that, he was not knowing about the assailant. He has not seen the face and he has only seen from the back. From the evidence of PW-4 Sumer Siddi, as discussed earlier, though he has sustained injury with knife, however, he came to know for the first time about the name of accused when he was told by his mother by disclosing the name of Abhram. He has not seen the face and he has only seen from the back. From the evidence of PW-4 Sumer Siddi, as discussed earlier, though he has sustained injury with knife, however, he came to know for the first time about the name of accused when he was told by his mother by disclosing the name of Abhram. He had attended "mazlish" on that night and returned at 10-00 to 10-30 PM and he has heard the cries and he saw that his sister is being assaulted with knife and when he tried to catch hold of that person, he was also assaulted with knife on his hand and accused has ran away in dark. He had gone to the house of Gajubha after calling the police and he has informed to Gajubha regarding assault on his sister and as per advise of Gajubha, the injured were taken to hospital. The doctor after cleaning the wound, found on the deceased, had declared her sister died. His relation with accused were cordial and accused had helped in a proceeding for maintenance filed by Sarifa against her husband at Gandhidham Court. ( 18 ) DR. Lakshmanbhai Patel - PW-2, who had performed the PM examination on the dead body of the deceased Rahima has noted down the injuries found on the dead body of Rahima in Column No. 17. These injuries are read as under :-" (1) A Stab wound 1. 5 Cm. X 1/2 CM. thovacic cavity deep on 2nd intercostal space Rt. side, obliquely downwards and medially at midclaricular line (Rt) (2) shaped I. W. about 5 cm. X 1/2 cm X 1/4 cm. starting from middle of nose to lateralside of Rt. nosestril. (3) Thasverse I. W. about 4 cm X 1 cm X muscle deep (platysula) on Rt. side of lateral part of neck 5 cm. behind Rt. T. M. joint. (4) oblique I. W. about 1 1/2 cm. X 1/2 cm. X skindeep at left wrist joint lateral at the level of anatomical snuff box. (5) oblique I. W. about 1/2 cm. X 1/2 cm X skin deep on aut. aspect of right wrist joint 2. 4 cm. away from no. 4 injury. "the cause of death according to Doctor is shook due to internal hammorriage due to injury to Rt. lung and Rt. Pulmonary vein. (5) oblique I. W. about 1/2 cm. X 1/2 cm X skin deep on aut. aspect of right wrist joint 2. 4 cm. away from no. 4 injury. "the cause of death according to Doctor is shook due to internal hammorriage due to injury to Rt. lung and Rt. Pulmonary vein. The same is also reflected in Column No. 20 of the PM note. ( 19 ) AS found from the evidence of Valiben, who is residing just near the house of Halimaben, who raised shout on that night that some one has climbed on the roof and the witness has tried to awake her neighbour i. e. Halimaben. Sarifa - PW-6 had also thereafter, ran from her house and went to the house of Valiben and there was also some conversation between her and Sarifa. As found from her evidence, she also suspected someone, who was found on the roof. She has not recognized the accused, as he was found on the roof and she had also called other neighbourers and all the neighbourers thereafter had gathered at the house of Halimaben. The evidence of Valiben only suggests that on that night, some one was found on the roof, for which, Valiben has raised cry by informing her neighbour Halimaben. Accordingly, her evidence is not useful for the purpose of connecting the accused with the crime. ( 20 ) IN my view, the learned trial Judge has on considering the evidence, recorded finding that the prosecution has failed to prove beyond reasonable doubt that the accused has entered by trespassing the house of Valiben as well as the house of complainant with an intention to commit offence and further with an intention to commit murder of Rahima by assaulting with knife and had committed murder of Rahima. On considering the entire evidence led by the prosecution, according to me, when the order of acquittal is based on close scrutiny of the witnesses examined by the prosecution and the learned trial Judge has given cogent reasons while acquitting the accused by giving benefit of reasonable doubt, the appeal filed by the State has no merits and even after reappreciating the evidence, according to me the order of acquittal deserves to be confirmed on the following grounds :- (I) That the complainant Sumer has not recognized the assailant and as admitted by him that the assailant has ran away in dark and he came to know the name of the assailant for the first time from his mother Halimaben, his evidence is not required to be treated as an witness to the incident, though, he has sustained injury. (II) As found from the evidence of Halimaben, she is an aged lady of more than about 60 years and according to her on receiving first injury, she become unconscious and she has regained her consciousness only after 3 days and her evidence as discussed earlier, does not inspire confidence in respect of the assault by the accused and her evidence is not at all useful to the prosecution, though, she is an injured witness. (III) On close scrutiny of all the witnesses led by the prosecution, they have admitted that their relation with accused were cordial and Rahima used to visit with her children even in past at the house of Halimaben at Navlakhi. (IV) The motive suggested for committing the murder, in my view, is not proved as, as found from the evidence that even when Rahima had visited Navlakhi at the house of her mother and brother earlier and her last visit before one and half months prior to the incident, she has not stated either to Halimaben or to her sister Sarifa that her husband is suspecting her character and further even on the day of incident at night, according to Sarifa, her sister Rahima had told her in night that her husband is suspecting about her character, in my view, such evidence regarding motive does not inspire confidence. On the other hand, it is borne out from the evidence of all the witnesses that respondent accused was helping them and their relation were cordial and even in the maintenance proceeding, initiated by Sarifa against her husband, the accused had helped them, even by taking them for filing maintenance proceeding in the Court. (V) The visit of Rahima with her children at the house of her mother Halimaben at Navlakhi with all ornaments suggests that Rahima had come at the house of her mother for celebrating Muharram and Rahima used to come at the house of her mother on Muharram day. (VI) Sarifa had left her husbands house since last abut 4 years and she was residing with her mother and brother at Navlakhi and in the maintenance proceeding, initiated by her against her husband, the respondent accused has helped them. (VII) A criminal complaint against the husband of Sarifa for assault and for giving threat to kill Halimaben is filed in respect of the incident occurred near the Police Station at Gandhidham and as found from the evidence of Halimaben that Halimaben used to go to take her husbands pension at Treasury office on the first floor in the building, where the police station is situated on the ground floor. (VIII) The investigation is not found satisfactory, in view of the fact that even after the arrest of the accused, no attempt is made to get the accused identified before the witness Valiben as well as to complainant Sumer. The cloths of the accused were not seized. The sleepers and wrist watch, which were found on the scene of offence, no attempt is made to connect these articles belonging to the accused, except as found from the evidence of Halimaben. (IX) The incident in question has occurred at mid night in dark and the complainant has in term admitted that he has seen the back portion of the assailant, as the assailant has ran away in dark. (IX) The incident in question has occurred at mid night in dark and the complainant has in term admitted that he has seen the back portion of the assailant, as the assailant has ran away in dark. ( 21 ) CONSIDERING the over all evidence, according to me, the evidence of prosecution witnesses does not inspire any confidence and more particularly, the learned trial Judge has appreciated the evidence and granted reasonable benefit of doubt in favour of the accused and even after reappreciation of the evidence, this is not a case in which the order of acquittal requires any interference and in my view, there is no merits in the acquittal appeal filed by the State and the order of acquittal deserves to be made confirmed and accordingly, the present appeal is dismissed. .