JUDGEMNT 1. The petitioner herein is a victim of unfortunate incident taken place after Godhra incident in the year 2002. The petition is against the judgment of acquittal dated 4.4.2007 passed by Presiding Officer of 5th Fast Track Court, Palanpur in Sessions Case No.108 of 2002. The sessions triable offences were registered at Vadgam Police Station with reference to C.R.No.I-19 of 2002 on 2.3.2002. After investigation of the offence, the investigating agency has filed chargesheet before the concerned Magistrate, which was ultimately, committed to the Sessions Court for the offences punishable u/ss.143, 147, 148, 149, 435, 436, 188, 337 and 325 of the Indian Penal Code r/w. Section 131 of the Bombay Police Act. 2. The sum and substance of the argument by the learned advocate for the applicant Mr.Shah was to the effect that this being revision against an order of acquittal the Court may remand the sessions case for retrial so as to convict the accused. Since the sum and substance of argument is for retrial of the sessions case, it has been proceeded further even in absence of respondents No.3 and 4, since they are duly served. 3. In addition to submissions on behalf of petitioner as well as respondents, record and proceedings of the original Sessions Case No.108 of 2002, which is received from the trial Court has been perused by the Court. 4. The story, history and nature as well as sequence of incidents are well defined in the impugned judgment as well as in revision petition and, therefore, this order is not burdened by its repetition, considering the fact that basic request before this Court is to remand the Sessions Case for retrial mainly for re-appreciation of evidence on record. 5. The jurisdiction of the Court in such revision petitions are limited by the statute itself, thereby prima-facie, the Court has to look into the issue regarding irregularity or illegality, if any, committed by the trial Court while passing the impugned judgment and whether the impugned judgment has ultimately resulted into miscarriage of justice or absolute injustice to the either of the litigant. Therefore, this being the first revision against the order of acquittal, though this Court is empowered to re-appreciate the evidence, to examine that whether appreciation of evidence by the trial Judge has resulted into miscarriage of justice or not, it is settled legal position that such re-appreciation of evidence has to be done with limited jurisdiction and authority so as to verify the irregularity and illegality only and evidence cannot be re-appreciated or dealt with, only because of different opinion of the Appellate Court. Thereby, the Appellate Court has to be careful while re-appreciating the evidence in case of acquittal and decision of acquittal can be interfered only and only if the appreciation of evidence by the trial Judge is absolutely unjust and illegal and without consideration of settled legal position and applicable law. Thereby, only because someone is able to take a different view from the same set of evidence, on such ground alone, the evidence cannot be re-appreciated so as to convert the decision of acquittal into that of conviction of accused. To that extent, the Apex Court has categorically stated that in case of acquittal appeal or revision, the accused have got double benefit in their favour viz. (1) a standard rule of criminal jurisprudence that no-one should be believed as an accused unless there is proper proof and evidence against him and (2) in such cases of acquittal, the judgment of acquittal, which is otherwise confirming either innocence or lack of evidence against such accused. Therefore, respondent before us though they were accused before the trial Court, they are having a clear verdict in their favour by the trial Court that either they are innocent or there is lack of evidence so as to convict them and, therefore, in such cases, the re-appreciation of evidence is to be done with great care and order of acquittal can be interfered only and only if there is absolute and clear evidence without any doubt regarding commission of offence by such respondent. Therefore, the smallest benefit of doubt would certainly tilt in favour of the respondents in criminal appeal or revision. 6. Therefore, the smallest benefit of doubt would certainly tilt in favour of the respondents in criminal appeal or revision. 6. With background of above legal position, if we peruse the record and proceedings as well as the impugned order, it transpires that so far as investigation and trial is concerned, the applicant has no say to the effect that either investigation is not proper or that there is any irregularity or illegality in the trial of the sessions case before the trial Court. The record shows that all procedural matter has been taken by the investigating agency and by the trial Court while admitting and dealing with the case wherein present petitioner is a victim. The record also shows that the investigating agency has examined as much as 17 witnesses. Though the chargesheet shows the long list of 44 witnesses, it is not the case of the petitioner that remaining witnesses were material witnesses or eye-witnesses and, therefore, in their absence, trial could not be completed. Even it is neither pleaded nor argued before this Court that let there be a retrial of the case for want of examination of particular witness(s). Even none of the witness, who is cited in the chargesheet, but not examined by the investigating officer before the trial Court, has came forward even by filing an affidavit before this Court that he was available for adducing evidence and that he is knowing the fact of incident. Further he was not called for either by the investigating officer or by the Court for evidence and, therefore, the trial is vitiated and retrial is must. It is clear that the investigating agency and public prosecutor are the best persons to scrutinize the list of witnesses and to select the witnesses so as to prove the offence beyond reasonable doubt. It goes without saying that if some of the witnesses whose statements was recorded only for some ancillary information may not required to be examined. Similarly, if particular witness is neither eye-witness nor having information directly involving the accused with the incident or commission of an offence and their statement was recorded only with a view to confirm some other information, their deposition before the trial Court may not be necessary. Similarly, if particular witness is neither eye-witness nor having information directly involving the accused with the incident or commission of an offence and their statement was recorded only with a view to confirm some other information, their deposition before the trial Court may not be necessary. Therefore, only because some of the witnesses, whose names are shown in the chargesheet, but are not examined before the trial Court, it cannot be said that there is irregularity or illegality committed by the trial Judge in deciding the case on hand by impugned judgment and for that such reasons, case cannot be remanded back for retrial. The necessity of examining any such witness is to be decided from the sequence of evidence already adduced before the trial Court, and more particularly when barring complainant, most of the witnesses are not supporting the case of the investigation. 2. If we peruse the impugned judgment, it transpires that the trial Judge has dealt with all evidence on record on each aspect, otherwise required to be considered for determining such case on hand. 3. In the impugned judgment, the trial Judge has discussed evidence of all witnesses and after thoughtful consideration, appreciating such evidence, which resulted into the conclusion that the evidence is not tenable to prove the case beyond reasonable doubt, so as to convict the accused. Therefore, when there is neither illegality or irregularity either in the trial or in the impugned judgment, prima-facie, there is no substance in the revision, more particularly for remanding it back for retrial. 4. However, it would be appropriate to scrutinize the evidence and its appreciation by the trial Judge only for limited purpose as discussed above. The prosecution has examined inasmuch as 17 witnesses before the trial Court and produced 15 documentary evidence in support of their case. 4. However, it would be appropriate to scrutinize the evidence and its appreciation by the trial Judge only for limited purpose as discussed above. The prosecution has examined inasmuch as 17 witnesses before the trial Court and produced 15 documentary evidence in support of their case. List of all such oral and documentary evidence is as under:- Exh.24 Deposition of Ramjibhai Laljibhai Patel Complainant Exh.31 Deposition of Rajabhai Pitambharbhai A.S.I. Exh.32 Deposition of Bhemjibhai Dhanrajbhai Police witness Exh.38 Deposition of Sharifbhai Vajebhai Owner of Milan Hotel Exh.40 Deposition of Sharifbhai Wazirbhai Panch witness Exh.43 Deposition of Ismail Rajmahammad Exh.49 Deposition of Yakubbhai Sharifbhai Exh.51 Deposition of Sureshkumar Bhulabhai Chauhan Exh.54 Deposition of Ibrahimbhai Abdulbhai Kadiwal Exh.56 Deposition of Shafiqbhai Sharifbhai Exh.57 Deposition of Ramjibhai Laljibhai Patel Panch witness Exh.60 Deposition of Dr.Ishwarbhai Ramjibhai Medical Officer Exh.62 Deposition of Zakirhussain Razakbhai Memon Exh.63 Deposition of Mukeshkumar Ramshankar Bhojak Panch witness Exh.64 Deposition of Dr.Vikram Avandan Gandhvi Medical Officer Exh.71 Deposition of Ibrahim Abdulrahim Exh.74 Deposition of R.L.Patel Investigating Officer Whereas following documentary is on record:- Exh.25 Complaint Exh.41 Panchnama of place of incident Exh.58 Arrest panchnama Exh.61 Transfer form Exh.65 Injury certificate of Yakubbhai Sharifbhai Exh.66 Injury certificate of Ibrahimbhai Abdulbhai Exh.67 Injury certificate of Shafiqbhai Sharifbhai Exh.68 Yadi by Medical Officer Exh.69 Injury certificate of Sureshbhai Dhulabhai Chauhand Exh.75 List Exh.76 Report of P.S.I. to add the charges Exhs.77, 78 and 79 Yado to Medical Officer Exh.80 Notification u/s.37(1) of the Bombay Police Act Exh.81 Notification of District Magistrate u/s.144 of the Cr.P.C. 2. On examining above oral and documentary evidence, it transpires that - 1. At Exh.24, though the complainant has supported the contents of the FIR, being police inspector, the fact remains that they reached at the place only after the incident had taken place and, therefore, though he has arrested two persons from the place of incident, he cannot be termed as an eye-witness and his evidence is to be considered for corroborating the evidence by the eye-witnesses and the victims only and not as a conclusive proof for confirming the guilt of the accused in absence of cogent and reliable evidence against the accused without reasonable doubt by eye-witness. There is a thin line, but a vast difference in identifying the people in a group after the incident. There is a thin line, but a vast difference in identifying the people in a group after the incident. Therefore, if two people are arrested from such group of 100 people after the incident, it cannot be said that they were committing any offence only because they were present near the place of incident. It is also to be noted that the person, who were alleged to be caught from the place were known to the police because of their profession as being Press Reporter and Photographer. Therefore, if such accused says that they were at the place to cover the news of the incident and that the complainant has wrongly implicated them because they have to repeatedly report about the inaction of the police, there is substance in their defence, more particularly in absence of any other cogent reliable and corroborating evidence, which confirms their guilt without any doubt. Witness No.2 A.S.I. Rajabhai Pitambarbhai has categorically stated that respondents Ravindrakumar Barot and Dharmendrakumar Joshi were arrested on directions of the P.S.I. and, therefore, when he admits that after application of tear gas by him, the people had ran away, it is difficult to believe the evidence of complainant R.L.Patel, which is not thoroughly corroborated by this witness. This witness has also confirmed that in fact after the Godhra incident, the Vadgam town was honoring closure and further admits that respondents Ravindrakumar and Dharmendrakumar are Press Reporter and Photographer. Both the police witnesses have confirmed that they were knowing such persons since long. 2. Witness No.3 Bhemjibhai Dhanrajbhai, a Police Constable has also confirmed that they have tried to extinguish the fire and that mob of 100 people were running from here to there and that he is not aware about the panchnama. There is contradiction at least so far as the time of incident, reaching of police at the place of incident and arrest of respondents are concerned, in deposition of all these policemen and except confirming the arrest of concerned respondents. All the above three witnesses had not seen them bursting the fire and, therefore, they are not the eye-witnesses to the incident. The only thing which can be confirmed from these three witnesses is, at the most, presence of these two respondents in the town on the date of incident. All the above three witnesses had not seen them bursting the fire and, therefore, they are not the eye-witnesses to the incident. The only thing which can be confirmed from these three witnesses is, at the most, presence of these two respondents in the town on the date of incident. Though, considering their profession being Press Reporter and Photographer, if they are present near the place of incident, it cannot be stated that they have committed any offence as alleged because there is contradiction in the oral evidence and arrest memo. Witness No.4 Sharifbhai Vajebhai, is claiming to be the eye-witness and the victim being owner of the Milan Hotel, which was burnt in the incident. It is his say that mob of 100 people had reached to the place and started throwing stone on Pan Shop and in such incident, his son Yakub has received injuries on his right leg and that mob was shouting that because the people of Muslim community have burnt a railway bogie at Godhra, let us burst fire on their shops and kill them. Though the witness has tried to allege against the present respondent stating that they had broken the door of the hotel and entered into the hotel, such version is falsified by his own statement during cross-examination in the same deposition at Exh.38, there is vast contradiction between examination-in-chief and cross-examination inasmuch as in cross-examination, witness has categorically admitted that there were no stone lying at or near the hotel and Pan Shop and that they had taken shelter in the hotel by closing the shutter of the hotel. He has admitted that at the place of incident, there were in all four persons i.e. himself, his son and two servants, and that none of them had got burn injuries and neither the gas cylinder was burst and that when fire was burst out, they had rushed to their house, but in the next breath, he states that his Rs.25000/- in the premises were burnt. Though the witness has denied the suggestion that some local people had objected about non-vegetarian items being cooked in the hotel and because such objection was reported by the accused with photograph, he was having enmity with them and, therefore, he has disclosed their name. Though the witness has denied the suggestion that some local people had objected about non-vegetarian items being cooked in the hotel and because such objection was reported by the accused with photograph, he was having enmity with them and, therefore, he has disclosed their name. He has to admit that he is not aware that how police has reached at the place and who others are present at the place. In short, there are several contradictions in his deposition and in absence of corroborating evidence by other witnesses and investigation, his evidence alone is not sufficient to prove the guilt of respondents. 3. Witness No.5 at Exh.40, namely, Sharifbhai Wazirbhai is Panch witness, who confirms the examination during the panchnama and contents of the panchnama. The panchnama was carried out on next day morning and except proving the contents of panchnama, his evidence does not confirm the guilt of respondents in absence of corroborative evidence. 4. However,the second panch witness of the same panchnama at Exh.41, namely, Ismail Rajmohammad as witness No.6 at Exh.43 does not support the case of the investigation. Though he was declared as hostile, the fact remains that it nullifies the evidence of witness No.5 Sharifbhai Wazirbhai at Exh.40. 5. Witness No.7 at Exh.49 is Yakubbhai Sharifbhai, who is one of the victim and son of Sharifbhai Vajebhai, owner of Milan Hotel. Unfortunately, there is vast contradiction in the deposition of the father and son duo if we read it together, inasmuch as the father Sharifbhai says that we had run away from back-door whereas son Yakubbhai says that they have shut the shop and hotel and run away from front door. It is pertinent to mention that though he is son of the hotel owner, he says that he does not know the name of the persons serving at his hotel and that he does not know even the name of the neighbourer of his hotel though he was running the Pan Shop adjoining to such hotel and that he does not know that since when the hotel is there or the other persons doing business nearby the hotel and his shop. It is surprising to note that a key eye-witness and injured victim has deposed hardly 18 to 20 lines in his examination-in-chief and his more than 3 pages cross-examination makes it clear that he is nothing but a chance witness. It is surprising to note that a key eye-witness and injured victim has deposed hardly 18 to 20 lines in his examination-in-chief and his more than 3 pages cross-examination makes it clear that he is nothing but a chance witness. There is reason to say so without reproducing the evidence at length at this stage of re-appreciation of evidence only because practically the medical certificate and evidence of Medical Officer would make it clear that his injuries were superficial, which confirms that even his father Sharifbhai Vajebhai though an eye-witness as per prosecution, is also not disclosing true and correct position and try to involve some one because of the incident. 6. Witness No.8 Sureshkumar Bhulabhai Chauhan at Exh.51 was stated to be victim by the investigating officer, but unfortunately, he was also declared hostile since he is not supporting the case of the prosecution and his evidence goes to the root of the case that when one of the victim himself is not supporting the case of the prosecution, the prosecution and other victim has to be careful to produce cogent evidence to confirm the guilt of the respondent. 7. Witness No.9 Ibrahimbhai Abdulbhai Kadiwal at Exh. 54 and witness No.10 Shafiqbhai Sharifbhai at Exh.56 have posed themselves as eye-witnesses, but their depositions confirm that they came to know about the incident and deposed the facts, which they gathered about the incident. There is material contradiction in their statement before the police and deposition before the Court and, therefore, they cannot be treated as a reliable witness and based upon their evidence, respondents cannot be convicted. 8. Witness No.11 Bharatkumar Shankarlal, Exh.57 was declared as hostile and he does not support the arrest panchnama. 9. Witness No.12 at Exh.60 is Dr.Ishwarbhai Ramjibhai Patel, who has simply confirmed that Sureshbhai Dhulabhai was brought before him, but he refused to get his X-ray though advised and he has not issued any certificate. 10. Witness No.13 at Exh.62 is Zakirhussain Razakbhai Memon, who was also declared hostile and who nullifies the evidence of so-called eye-witnesses Ibrahimbhai Abdulbhai Kadiwal and Shafiqbhai Sharifbhai because if we consider the evidence of these three witnesses, who were examined as eye-witness, but have not received any injury, it becomes clear that their statement and evidence are contradictory with each other. 11. 11. Witness No.14 at Exh.63, Mukeshkumar Ramshankar is a panch witness and declared hostile and, therefore, recovery of articles from the respondents could not be proved on record. Witness No.15 at Exh.64 is Dr.Vikram Avandan Gadhvi, Medical Officer of Block Health Centre at Vadgam, who confirms that Yakubbhai Sharifbhai and Ibrahimbhai Abdulbhai were brought to him, but his evidence and medical certificates at Exhs.65, 66 and 67 confirms that there is no serious injuries, but there was only pain as alleged by such witness. Such evidence also does not confirm the guilt of the respondents. 12. The evidence of Ibrahim Abdulbhai as witness No.16 at Exh.71 is something surprising when he admits that he is also known as Ibrahimbhai Rahimbhai Padarwala and he has given evidence in this Court as Ibrahimbhai Abdulbhai Kadiwal. Such admission of a person, who claims to be the Manager of Milan Hotel, which is the key place of incident, on the given date speaks for itself that how investigation has been carried out and how witnesses are coming before the Court after the Godhra incident for confirming conviction of certain persons of the area, more particularly in the present case when one of the respondent is Reporter and other is a Photographer and when it is there case that they were trying to cover the incidents as news item. 2. If we peruse the entire evidence in its totality and if we consider the appreciation of such evidence as discussed by the learned trial Judge in paragraphs 11 to 21, though there may be difference of opinion, if we re-appreciate the evidence, it is crystal clear that one cannot come to the conclusion that there is any irregularity or illegality and that the learned trial Judge has failed to consider such evidence as cogent and reliable evidence against the present respondents for confirming their guilt. To that extent, there is no reason to disapprove the appreciation of such evidence so as to interfere the decision of acquittal either into the decision of conviction or for retrial of the entire case as argued by the petitioner before this Court. 3. To that extent, there is no reason to disapprove the appreciation of such evidence so as to interfere the decision of acquittal either into the decision of conviction or for retrial of the entire case as argued by the petitioner before this Court. 3. It cannot be ignored that decision of acquittal cannot be converted into decision of conviction only because there is possibility of coming to different opinion or conclusion while appreciating the evidence on record by the Appellate Court and retrial can be permitted only and only if the investigating agency has failed to examine and to adduce reasonable and available evidence before the trial Court so as to prove the guilt of the accused. It is not the case before us that investigating officer has failed to examine the key witness or eye-witness or to produce relevant evidence both oral and documentary before the trial Court for confirming the guilt of the accused. Therefore, unless the investigating agency or the complainant or the victim came forward with a specific averment and prove that though particular evidence was available, the same was not produced before the trial Court, there cannot be an order of retrial. 4. Looking to the facts and circumstances and evidence on record as discussed herein above and more particularly as discussed by the learned trial Judge in the impugned judgment, having limited jurisdiction in revision application against order of acquittal, this Court is not convinced to interfere with the decision of acquittal merely because the victim prefers such revision, more particularly in absence of cogent and reliable evidence on record against the respondents. For coming to such conclusion, the reliance is placed upon the judgments of the Apex Court in Johar and Others Vs.Mangal Prasad and Anr. reported at (2008)3 SCC 423 and Sheetala Prasad and Ors. Vs. Sri Kant & Anr. reported at (2010)2 SCC 190 , which makes it clear that interference with judgment of acquittal is not permissible unless impugned judgment is perverse. The revisional jurisdiction u/ss.397 and 401 of the Cr.P.C. is limited, more particularly when it is arising from a judgment of acquittal and it is not permissible for the High Court to analyse the depositions of all the witnesses and to re-appreciate the whole evidence. The revisional jurisdiction u/ss.397 and 401 of the Cr.P.C. is limited, more particularly when it is arising from a judgment of acquittal and it is not permissible for the High Court to analyse the depositions of all the witnesses and to re-appreciate the whole evidence. There must be any error of law on the part of the trial Judge and unless any evidence has been left out of consideration by the trial Judge or any irrelevant material has been taken into consideration, then and then the High Court has to re-appreciate the evidence. 5. In view of discussion herein above, on facts, evidence and law point, I do not find any error of law or irregularity or illegality or perverseness in the appreciation of evidence and decision by the trial Judge, which does not permit this Court to come to any different conclusion even if entire evidence is examined herein above to convert the decision of acquittal into that of conviction or to order the re-trial as prayed for by the petitioner. The result is there is no substance in the petition, which deserves to be dismissed and, hence, dismissed. 6. Rule is discharged.