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2016 DIGILAW 1037 (GUJ)

State of Gujarat v. Rajubhai Maganbhai Patel

2016-06-07

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : B.N. Karia, J. 1. This Appeal, preferred under Section 378[1](3) of the Code of Criminal Procedure, 1973 ["CrPC" for short] by the State of Gujarat, challenges the judgment and order of acquittal dated 18th May 2005 passed by the learned Presiding Officer, Fast Track Court No. 4, Nadiad in Sessions Case No. 117 of 2002. 2. Brief facts of the case are- On 3.03.2002, the complainant-Sabbirbhai Fakirmohammed Vora, resident of Village-Sayma went to his place of business i.e., cabins at about 4:00 pm in the evening. There he found a mob of about 500 to 600 persons armed with dhariya, stick, spear and knife came rushing to their cabins. On seeing them, the complainant and his son left the place and took shelter in the nearby area called Harijanvas. It is the say of the complainant-Sabbirbhai Fakirmohammed Vora that he occupies three cabins for the purpose of doing business and out of these three cabins, one is occupied by his son Sakirbhai and two others are occupied by him. It is the say of the complainant that due to Godhra carnage, the said mob of around 500 to 600 persons armed with aforementioned weapons set ablaze the cabins, causing huge loss to his property, giving rise to filing of a complaint before Khambhat Rural Police Station on 8th May 2002 against the present accused persons for the alleged offence of causing damage to the entire three cabins and for looting the goods and burning the cabins. 3. After investigation, the Police filed chargesheet before the learned JMFC, Khambat against the accused persons viz., Rajubhai Maganbhai Patel; Bipinbhai Maganbhai Ashabhai Patel; Ashokbhai Chhaganbhai Patel; Arvindbhai Somabhai Patel; Pareshbhai Pravinbhai Patel; Arvindbhai @ Nanio Dineshbhai Patel; Piyushbhai Babubhai Patel; Jitendra Chimanbhai Patel; Bhikhabhai @ Jayantibhai Chhotabhai Patel; Urmeshbhai Kanubhai Patel; and Maganbhai Ashabhai Patel for the offence punishable under Section 143, 147, 148, 435, 436 read with Section 149 IPC and under Section 135 of the Bombay Police Act. The accused were given copies of the chargesheet papers, as per the provisions of the Gujarat Criminal Manual. Since one of the charge levelled being under Section 436 IPC, the case was committed to the Court of learned District & Sessions Judge at Nadiad and was numbered as Sessions Case No. 117 of 2002, and transferred for adjudication before the Fast Track Court. 4. Since one of the charge levelled being under Section 436 IPC, the case was committed to the Court of learned District & Sessions Judge at Nadiad and was numbered as Sessions Case No. 117 of 2002, and transferred for adjudication before the Fast Track Court. 4. At trial, the respondents pleaded not guilty and claimed to be tried. The learned Fast Track Judge, after duly appreciating the prosecution evidence brought on the record, acquitted the accused, giving rise to the present Appeal by the State of Gujarat. 5. The learned Presiding Officer, 4th Fast Track Court, Nadiad vide judgment and order dated 18th May 2005 was pleased to acquit all the 15 accused named in the chargesheet, giving rise to filing of the present Appeal. 6. Learned Special PP Mr. JM Panchal appearing with Mr. Nayan D Parekh, learned APP submitted that the order of acquittal of the accused is contrary to law and evidence on the record of the case. According to him, by examining two material witnesses namely Sabbirbhai Fakirmohammed Vora-complainant [Exh. 19] and Iliyash Mohammed, PW-5 [Exh. 38], the prosecution has clearly proved its case beyond reasonable doubt against the accused. He invited attention of this Court to the deposition of the PW-1 Sabbirbhai Fakirmohammed Vora and urged that this witness has deposed in his testimony that he was residing at village Sayma and occupied three cabins. Out of these three cabins, in one cabin he was doing his business and in the second cabin, his son Sakirbhai was doing business and whereas the third cabin was used as a godown. That, this witness has further deposed that on 3rd March 2002, they went to their cabins at about 04:00 pm in the evening at that time due to Godhra carnage, a mob of 500 to 600 persons armed with dhariya, stick, spear, knife came to their cabins as a result of which, this witness and his son left the place to hide at a nearby area known as Harijanvas. Thereafter, the mob set ablaze the cabins. Thereafter, the mob set ablaze the cabins. This witness has seen the entire episode and found that while setting ablaze the cabins, the accused persons i.e., Rajubhai Maganbhai Patel; Bipinbhai Maganbhai Patel; Ashokbhai Chhaganbhai Patel; Arvindbhai Somabhai Patel; Pareshbhai Pravinbhai Patel; Bhimkhabhai @ Jogabhai Chhotabhai Somabhai Patel; Jitendra Chimanbhai Patel, Urmishbhai Kanubhai Patel; Totiyo, Piyushbhai Babubhai Patel, Arvindbhai @ Nanio Dineshbhai Patel; Maganbhai Ashabhai Patel; Rajuhai Mafatbhai; Rameshbhai Khodabhai Patel; Jayantibhai Chimanbhai and Bhadreshbhai Rajubhai had played material role in committing the offence. In this way, they had suffered loss of Rs. 75,000/- for the damages caused to entire three cabins and all the goods were looted so also burnt. This witness has further deposed that thereafter, he and his son by somehow reached Khambhatt where curfew was imposed, and therefore, he could not approach the police for lodging the complaint and on 8th March 2002, a complaint was lodged before the Police. This witness has identified his signature below complaint Exh. 20 and also identified the accused persons who were present in the Court. He has further deposed that on 9th March 2002, he went to the spot where panchnama was drawn in presence of two panch witnesses. This witness was cross examined by the otherside but nothing adverse could be elicited. However, the learned trial Judge did not believe the evidence of this witness and has erred in coming to the conclusion. While inviting attention of the Court to the deposition of PW-5 Iliyashbhai Mohammedbhai examined at Exh. 38, learned counsel for the appellant Mr. Panchal has urged that this witness has clearly deposed that on 9th March 2002, he was called by the Police near the area of Vaghrivas of village Sayama and that alongwith him, another panch-witness Ushmanbhai Rasulbhai was also present. That, approximately Rs. 75,000/- damage was caused. That the description of burnt cabins was mentioned in the panchnama which were of Sabbirbhai. That after the panchnama was drawn, he had signed below the same and has identified his signature at Exh. 39. As per the deposition of this witness, PW-2 had also signed below the panchnama. This witness was also extensively cross examined by the otherside but nothing adverse was elicited. However, the learned Judge did not believe the evidence of this witness and acquitted the accused. Another witness No. 6-Sakirbhai Sabbirbhai Vora examined at Exh. 39. As per the deposition of this witness, PW-2 had also signed below the panchnama. This witness was also extensively cross examined by the otherside but nothing adverse was elicited. However, the learned Judge did not believe the evidence of this witness and acquitted the accused. Another witness No. 6-Sakirbhai Sabbirbhai Vora examined at Exh. 40 by the prosecution is the son of the complainant. He has also clearly deposed that he and his father were residing at Village Sayma and occupied three cabins. That on 3rd March 2002, when they went to their cabins at about 4:00 pm in the evening, due to Godhara carnage, a mob of 500 to 600 persons armed with Dhariya, Stick, Spear and knife came to their cabin, as a result of which they left away from the place to hide at the nearby area called Harijanvas. Thereafter, the mob set ablaze the cabins. This witness has seen the entire episode and has also named all the accused persons in his deposition saying that they had played material role and they had suffered loss of Rs. 75,000/- for the damage caused to entire three cabins, and all the goods were looted and burnt. He has also identified the accused persons before the Court who were present in the Court. In the cross examination of this witness, nothing adverse could was elicited. That, muddamal weapons were recovered from the respondent-accused have been identified by the witness No. 9 Gumansinh Nathabhai Garasiya who has been examined at Exh. 62. Ultimately, it was requested by him to quash and set-aside the impugned judgment rendered by the learned Judge and convict the accused for the offence qua the charges levelled against them. 7. Per contra, learned advocate Mr. ND Gohil appearing for the respondent-accused in his submissions strongly supported the judgment rendered by the learned trial Judge, urging that two witnesses namely Sabbirbhai Fakirmohammed Vora and Iliyashbhai Mohammedbhai, as referred by the prosecution, are not consistent in their testimony before the Court. That, PSO-Mustafa Gulamnabi [PW-8] has not clearly made narration of the incident in the complaint. In the cross examination of PSO-Mustafa Gulamnabi has stated that there was no word to hide the prosecution witness. That none of the witnesses have seen the alleged episode and the offence as stated by the prosecution witness. That, PSO-Mustafa Gulamnabi [PW-8] has not clearly made narration of the incident in the complaint. In the cross examination of PSO-Mustafa Gulamnabi has stated that there was no word to hide the prosecution witness. That none of the witnesses have seen the alleged episode and the offence as stated by the prosecution witness. That, the complaint was late by five days as however there was no curfew in the city, and therefore, it cannot be relied on or considered that the prosecution witness No. 1 Sabbirbhai also has admitted in his cross examination that there was no curfew in the city. Another witness-Kanubhai Gokulbhai [PW-4] has deposed that everything was well within control. That, four accused were implicated falsely, after lodging of the complaint. Defence witness Exh. 64 has clearly stated that there was no place nearby to the place of the offence for hiding the prosecution witness. No document is produced by the prosecution that any curfew was imposed by the concerned authority nearby to the area of the place of offence. That, there was no stability in the witness of two witnesses relied by the prosecution. That material contradictions are found in their version which creates strong doubt on the testimony of the witnesses examined by the prosecution. Learned advocate pointed out that no independent witness were examined by the prosecution; nor identification parade was carried by the Police. He also emphasized that no specific role alleged by the accused persons has been mentioned, as the presence of the accused at the spot of offence was not possible and there is no natural conduct on the part of the prosecution witnesses. Deposition of PW-Sabbirbhai Fakirmohmmed Vora do not reveal place where the prosecution witnesses were hiding. According to the learned advocate Mr. Gohil appearing for the respondent-accused, the said prosecution witness is not trustworthy witness. No illegal assembly was proved by the prosecution, and therefore, a request was made by him to dismiss the appeal. In support of his submissions, learned advocate has placed reliance upon the following authorities, viz., [a] Main Pal & Anr. According to the learned advocate Mr. Gohil appearing for the respondent-accused, the said prosecution witness is not trustworthy witness. No illegal assembly was proved by the prosecution, and therefore, a request was made by him to dismiss the appeal. In support of his submissions, learned advocate has placed reliance upon the following authorities, viz., [a] Main Pal & Anr. vs. State of Haryana & Ors., 2004 (2) GLH 651; [b] Narayanmurthy v. State of Karnataka & Anr., 2008 (2) GLH 566; [c] Ghurey Lal v. State of Uttar Pradesh, 2008 (3) GLH 715; [d] Dhanpal v. State of Madras by Public Prosecutor, 2010 [1] GLH 119; and [e] State of Rajasthan v. Shera Ram & Vishnu Dutta, 2011 [3] GLH 802. 8. In case of Main Pal & Anr. v. State of Haryana & Ors. [Supra], the Apex Court while dismissing the appeals preferred by the accused, observed that, "there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. As a matter of fact, in an appeal against acquittal, the High Court as the Court of first appeal is obligated to go into greater detail of the evidence to see whether any miscarriage has resulted from the order of acquittal, though has to act with great circumspection and utmost care before ordering the reversal of an acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other of his innocence, the view which is favourable to the accused should be adopted." 9. In case of Narayanamurthy v. State of Karnataka & Anr. In case of Narayanamurthy v. State of Karnataka & Anr. [Supra], while allowing the appeal, reiterated the principles enunciated in case of Tota Singh v. State of Punjab [ 1987 (2) SCC 529 ] to hold that, "..the jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous." 10. In case of Ghurey Lal v. State of U.P. [Supra], the Apex Court while considering the entire evidence and documents on record of the said case and the reasonings given by the trial Court for acquitting the accused and also the reasonings of the High Court for reversal of the judgment of the acquittal of the appellants therein has held that, "..If two reasonable view can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate Courts must rule in favour of the accused." 11. In case of Dhanpal v. State of Madras [Supra], the Apex Court reiterated the well settled principles already crystallized by it in number of judgments viz., [1] the appellate Court may not overrule or otherwise disturb the trial Court's acquittal if it has "very substantial and compelling reasons" for doing so. [2] the appellate court must always give proper weight and consideration to the findings of the trial Court; [3] if two reasonable views can be reached - the one that leads to acquittal and the other to conviction - the High Courts/appellate courts must rule in favour of the accused." 12. [2] the appellate court must always give proper weight and consideration to the findings of the trial Court; [3] if two reasonable views can be reached - the one that leads to acquittal and the other to conviction - the High Courts/appellate courts must rule in favour of the accused." 12. In case of State of Rajasthan v. Shera Ram @ Vishnu Dutta [Supra], the Apex Court while dismissing the Appeal filed by the State of Rajasthan held and observed that, "unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the Court of competent jurisdiction, the appellate court shall be reluctant to interfere with such judgment of acquittal." The Court also went to an extent holding that, "an appeal against acquittal has always been differentiated from a normal appeal against conviction. While dealing with an appeal against acquittal, the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal. The golden rule is that the Court is obliged and will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so requires and it is essential to appease the judicial conscience." 13. Having heard learned advocates for the respective sides, and having considered the facts of the case, evidence led by the prosecution before the trial Court as well as the record and proceedings, it appears that the alleged offence was committed on 3rd March 2002 at 4:00 pm. The complainant-Sabbirbhai Fakirmohmmed Vora has in his deposition made at Exh. 19 supported the same before the trial Court. However, the complaint was lodged on 8th March 2002 where PW-1 complainant has given reason for his delayed complaint saying that at the time of offence, there was curfew in the city of Khambhatt, and therefore, he approach the Police on 8th March 2002. While, the Police Officer Mr. Mustaffa Gulamnabi PW-8 [Exh. 58] in his deposition stated that when the complaint was recorded, there was no curfew. The son of the complainant-Sabbirbhai Fakikmohmmed Vora PW-6 Exh. 40 in his cross examination has admitted that there was no curfew in his society. In para 9 of the cross examination-Sakibhai Fakirmohmmed Vora has admitted that the distance of Police Station from his residence is only one kilometer. The son of the complainant-Sabbirbhai Fakikmohmmed Vora PW-6 Exh. 40 in his cross examination has admitted that there was no curfew in his society. In para 9 of the cross examination-Sakibhai Fakirmohmmed Vora has admitted that the distance of Police Station from his residence is only one kilometer. Considering this as a fact, there was no curfew in the city of Khambhatt at the time of alleged offence and the police station is hardly one kilometer from the residence of the complainant, without there being any explanation on delay in lodging the complaint, which was lodged on 8th March 2002, the explanation given by the complainant of the alleged offence committed on 3rd March 2002 does not appear to be satisfactory. Of course, the complainant-Sabbirbhai has tried to support his contentions in his deposition made before the Court, as made in the complaint, saying that at about 4:00 pm in the evening, a mob of 500 to 600 armed with dhariya, stick spear and knife came to their cabins, and thereafter, the mob set ablaze the cabins. He had seen the entire episode and found that by setting ablaze the cabins, the accused persons named in the complaint had played material role and he has suffered loss of Rs. 75,000/- for the damages cause to entire cabins and all the goods were looted so also burnt. He himself and his son left the place to hid at a nearby area of Harijanwas. The said version of complainant is supported by his son PW-6 : Sakirbhai Sabbirbhai Vora. Except these two prosecution witnesses, there is no other independent witness examined by the prosecution before the trial Court, and therefore, close scrutiny of deposition of these witnesses would be required by the Court. As per the say of the complainant, he approached the Police on 8th March 2002 for registering a complaint but it was not recorded by the Police as per the statement given. Of course, he has identified his signature put below the complaint and Exh. 20 was given only for putting his signature in the complaint. He has also identified the accused present before the Court. The muddamal is also identified by him. Alongwith the deposition of the complainant, Mr. Mustafa Gulamnabi PW-8 [Exh. Of course, he has identified his signature put below the complaint and Exh. 20 was given only for putting his signature in the complaint. He has also identified the accused present before the Court. The muddamal is also identified by him. Alongwith the deposition of the complainant, Mr. Mustafa Gulamnabi PW-8 [Exh. 58] stated before the Court that on 8th March 2002, while he was incharge as PSO at Khambhatt Rural Police Station, complainant-Sabbirbhai Fakirmohammed Vora, resident of village Sayma came to him and as per his complaint, it was recorded and thereafter, his signature was taken. However, investigation was handed over to Guman Nathubhai, Head Constable. In the cross examination, he has stated that son of the complainant-Sakirbhai also has accompanied him. He has denied that he himself had registered the complaint and the signature of the complainant was taken. He has also denied that additional names were given by the complainant which were not written by him. He has specifically admitted that it was not disclosed by the complainant in his complaint that what role was played by the accused, and therefore, it was not written in the complaint. He has further denied that the complaint was made at the Police station, and he was refused to registered the complaint by himself or any other police officer, as per the statement of the complainant. Therefore, the statement of the complainant that complaint was not recorded by the police as per his statement does not appear to be true or correct. Further, it appears from the cross examination of the complainant that private advocate was also engaged by him, but he had never informed his advocate also in respect of the complaint. No grievance was raised before the DSP or any other higher officer in respect of complaint not being recorded by the police as per his statement. No complaint was made before the Court also in this regard. It was for the first time when his deposition was recorded, he stated that police has not recorded his complaint as per his statement. He has made no complaint before the police in writing, nor tried to forward complaint through post also. At the time of preparing panchnama, he made no written complaint to the police. Further the panchas were not informed by the complainant that his complaint was not recorded by the police as per his statement. He has made no complaint before the police in writing, nor tried to forward complaint through post also. At the time of preparing panchnama, he made no written complaint to the police. Further the panchas were not informed by the complainant that his complaint was not recorded by the police as per his statement. He further admitted that on previous day before the Court that his complaint was read over to him by the police and his signature was also shown to him. At that time, he found that the complaint was not recorded as per the statement. However, he did not inform to his private advocate raising any grievance that the complaint was not recorded as per the statement made. No application was submitted before the Court raising any grievance in respect of non registration of his complaint as per the statement. He had never approached Sarpanch or Narendrabhai in respect of non recordance of his complaint as per his statement. The police was never informed on the previous day and the Court that his complaint was not recorded as per his statement. Before starting his deposition before the Court, he never made any complaint before the Police or his advocate on the same ground. It appears that after arrival of the Sarpanch and Narendrabhai, his complaint was recorded by the Police. As the complainant was ready and willing to settle the issue informing the Sarpanch and Narendrabhai that whatever damage was caused to him, if is paid by the villagers. But both of them did not support the complainant. Hence, his complaint was registered by the police. Such a conduct on the part of the complainant does not inspire the Court of his credibility. There was ample opportunity to raise his grievance in respect of non recording of the complaint by the police, as per his statement, but no grievance was raised by him either before the Court or before the higher officers or even before the private advocate, till deposition was recorded by the Court. Deposition of son of the complainant-Sakirbhai Sabbirbhai Vora PW-6 [Exh. 40] also does not inspire confidence in the prosecution case. Deposition of son of the complainant-Sakirbhai Sabbirbhai Vora PW-6 [Exh. 40] also does not inspire confidence in the prosecution case. As per the cross examination made at page 3, Police informed this witness that a complaint was registered by his father, but before registering the complaint by his father, there was no discussion to his father or any member in the family or friends or relatives. After registering the complaint as per the say of this witness, four to five days police inquired this witness. Indisputably, the complaint was registered on 8th March 2002. If one calculates four to five days after registering the complaint that would come to 12th or 13th days. This witness further states in his cross examination that he had not informed any body of the incident which took place, before informing the police on 13th March 2002. As such an offence was committed and his cabin was burnt, goods were looted, how a person can be silent upto 13 days without informing about the incident either to any of his family members, friends or relatives. Not even he has not discussed in respect of the alleged incident having taken place with his father before registration of the complaint, or after registration of the complaint, he has never tried to inform neighbors. As per his statement, he did not deem fit to inform about the incident to anybody till 12th or 13th March 2002 and there was a fear in his house. The relation with the members of the society were quite cordial. The police was not even informed on telephone, however, he was under knowledge that such an incident should be informed to the police. He did not even inform his father to record the complaint before the Court. His statement was recorded at the residence in presence of his father and other family members on 12th day by the police, as per his statement given. Voluntarily this witness has stated that four names were not written by the police, after recording his statement. It was written over to him while inquiring to the police in respect of the four names not written in the statement, he was informed that whatever was written by the police was correct and sufficient. Voluntarily this witness has stated that four names were not written by the police, after recording his statement. It was written over to him while inquiring to the police in respect of the four names not written in the statement, he was informed that whatever was written by the police was correct and sufficient. He has further stated that four names which were declared by him and were not written by the police were the main accused burning the cabins. The accused who were present before the Court played no part in burning the cabins but they had participated in lotting the articles. That, whatever discussion was made with the police, his father was present. Surprisingly, after leaving the Police Station, there was no discussion with his father in respect of the four names of the accused left out by the police. That, what action should be taken as father also made no effort to discussion on this issue. He never approached the higher police officer to incorporate the names of four left out accused nor even the Court was informed. It was his belief that necessary action would be taken against four accused, but he made no attempts to take action against these four accused. He himself and his father were in knowledge that when statement was record by the police four names were not written by the police. The father of this witness in his cross examination in para-4 has stated later on that his complaint was not recorded as per his instructions, as four names of accused were not recorded by the police. He was under impression before recording his deposition before the Court that four names were deleted by the police but it was not stated by him in his examination-in-chief before the Court he had never informed the Court or the police department or any other higher authority that four names were deleted by the police, though they were present at the time of the commission of offence. He had never given names of these four persons in writing to his advocate or public prosecutor. He had no fear when he came to the Court for recording the deposition. He has admitted in the examination-in-chief that he has not given names of these four persons. For the first time before the Court, he was declaring the names of these four persons. He had no fear when he came to the Court for recording the deposition. He has admitted in the examination-in-chief that he has not given names of these four persons. For the first time before the Court, he was declaring the names of these four persons. It is also admitted that in the chief-examination, the learned Public Prosecutor had enquired in what manner this incident took place but today i.e., the day of recording his evidence, he felt that names of four persons were left. In para-15, he admits that he was under information that it was material to disclose for his case to declare that what weapons were used by the accused and what role was played by them, but this fact was never disclosed by him. In a question asked to this witness specifically that he has not declared in the examination-in-chief that what role was played by the accused and what weapons were with the accused. He has answered in the affirmative clarifying that he was not asked, and therefore, he did not inform. In fact, as per the deposition of Mustafa Gulamnabi [PW-8] in his complaint, he has never declared as to what role was played by the accused in the alleged offence. Complainant has also admitted that in the examination-in-chief, he has not stated as to what weapons were with the accused. Complainant-Sabbirbhai Fakirmohammed Vora [PW-1] has of course named all the accused in the examination-in-chief stating that his cabin was destroyed and looted by the mob and due to fear, he went to Harijanvas to hide there. As per his statement, there was a damage of Rs. 75,000/- in all to the cabins. It appears from the cross examination that the accounts of his business was maintained by him. While purchasing goods, accounts was mandatory. The bills of the goods purchased by the customers were mandatory to be given. He was keeping the bills of the goods purchased for the entire year. Since last 10 to 12 years, he was purchasing the goods from the firm named Ambalal Ghanshyambhai and the bills were also issued to him. That, monthly he was purchasing goods worth Rs. 2.5 to 3 lacs. This witness has not produced any bills showing the goods or articles purchased by him. No documents were supplied to his advocate of his accounts. That, monthly he was purchasing goods worth Rs. 2.5 to 3 lacs. This witness has not produced any bills showing the goods or articles purchased by him. No documents were supplied to his advocate of his accounts. The damages alleged to have been caused to the cabins were never ascertained. Now, the issue of presence of the complainant or his son at the time of alleged offence by the accused would be material. As per the statement of the complainant-Sabbirbhai [PW-1 : Exh. 19] when the mob came towards his cabin, he went to Harijanvas and hide in a Vada. While his son went to Vaghrivas to hide there. From the deposition, it appears that both the father and son were hiding at different places. The distance of the place where the complainant was hiding an the place of alleged offence is not measured by the investigating agency nor any map was prepared. However, from the deposition of the witnesses, prima facie, it appears that the distance between the place of their hiding to the place of offence is 25 to 30 ft. The question is whether both the witnesses are in a position to see the alleged offence being committed by the accused persons and identify them face to face. In the cross examination at Exh. 6, complainant has admitted that from his cabin, the road leading to Harijanvas cannot be seen. If a persons would stand nearby to his cabin, the backside of the Vad of Thoria would come and thereafter the road would come. As per his previous admission, road of Harijanvas cannot be seen from his cabin, but only thoriya vad can be seen. After the backside of the Vad as well as the road, Vaghrivad gets started. It is stated that nobody has seen him in the Harijanvas. He himself did not try to contact any person in the Harijanvas nor tried to get any assistance from anybody. He did not see anybody nor any person came to him in the Harijanvas. As per his deposition in para 9 of the cross examination, the mob came from the city side. It was not shouting before 15 to 20 minutes prior to arrival there. However, thereafter, he modified his version saying that before he ran away, 10 to 15 minutes prior thereto there was shouting in the very sound voice constantly. As per his deposition in para 9 of the cross examination, the mob came from the city side. It was not shouting before 15 to 20 minutes prior to arrival there. However, thereafter, he modified his version saying that before he ran away, 10 to 15 minutes prior thereto there was shouting in the very sound voice constantly. At a first shouting, he ran away and hide on the very same moment and his son also ran away to hide somewhere. He stated that he had a fear that he would be murdered by the mob, if caught alive. He further admits that when his son went to Vaghrivas in a running position, he had seen him. This witness was on the backside of the house in Harijanvas where there was no frequency of the persons. He was hiding in a Vada of one Fulabhai Shankerbhai on the backside of a toilet. He never informed the police at what place he was hiding then. Thereafter, this witness turns his statement made in his previous deposition saying that when the mob came towards his cabins, he felt that he would be beaten by the mob. He never tried to run away or shout for any assistance. He was not attacked by the mob nor any injury was caused to him. Further, he stated for the first time that when the mob came to his cabins, it was seen by this witness and he tried to hide by running away towards Harijanvas Vada. Statement of this witness is self contradictory, which cannot be believed at all. Both - the father and the son were hiding at different places. This witness was hiding on the backside of the toilet of a Vada in Harijanvas. Of course, this witness has tried to establish that the distance of his cabin and the place of his hiding was five to six ft. only, which cannot be believed from the facts of this case. The deposition of Sakkirbhai Sabbirbhai Vora [PW-6 : Exh. 40] is also self-contradictory. He also felt that he would be killed by the mob. He never informed his father to run away or he did not try to close the cabin or to run away. While his cabin was looted, he was standing at Galla which is at a distance of 25 fts. 40] is also self-contradictory. He also felt that he would be killed by the mob. He never informed his father to run away or he did not try to close the cabin or to run away. While his cabin was looted, he was standing at Galla which is at a distance of 25 fts. He was unable to see the cabin of his father from the place. Thereafter, he went to Vaghri vas and hide there. Thereafter, he says that when the mob came to the cabin, he did not try to run away nor to inform his father, but was sitting in his cabin. He had never seen or happen to visit his father's cabin because it was not possible for him to see the incident from his cabin. He further admits that from the place of his hiding in Vaghri vas, he was unable to see cabin in the nearby dairy or cabin of his father. He further admits that he has not stated in the statement made before the Police that the accused had looted or destroyed his cabin. 14. From the entire evidence of the prosecution case, it appears that the conduct of both the witnesses is not natural nor their deposition is consistent. Both the witnesses have tried to improve their deposition before the Court. Names of four accused neither were declared while lodging the complaint nor to the higher police officer or advocate engaged by the complainant. Their names were added at the belated stage by the Court, though the complainant was knowing that their names were deleted. Keeping in mind the law laid down by the Apex Court with regard to exercise of power by the appellate Court in an appeal preferred under Section 378 read with Section 386 of the Code of Criminal Procedure to which reference is made in the earlier part of this judgment, the reasons and the findings arrived at by the trial Court in acquitting the accused are quite cogent and sound which deserves no interference at the hands of this Court. 15. Resultantly, Criminal Appeal fails and the same is dismissed with no order as to costs.