JUDGMENT : B.N. Karia, J. 1. This appeal by the appellant State is directed against the judgment and order of acquittal dated 28th March 2005 passed by the learned Judicial Magistrate First Class Rajkot, whereby the Court has acquitted the respondent-accused in Criminal Case No. 5817 of 2002 consolidated with Criminal Case No. 9970 of 2002. 2. Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged before this Court for and on behalf of the respective parties. 3. The prosecution case before the trial Court was that on 13th May 2002, complainant Jiteshkumar Tulsibhai lodged an FIR, being F.I.R. No. I-182/2002, against the accused-Gajendra @ Munna @ Manoj Bhupatbhai Dabhi and Lalo @ Dharmesh Haribhai Gohil alleging that when he and PW-6 Maheshbhai were on their way on a Vespa Motor Scooter bearing No. GJ-3C-5392 near main Kothariya Road at Pursharth Society turning, at that time, the accused persons sprinkled certain powder on them and thereby started beating them with a wooden stick and after inflicting injuries, they looted 38.954 kilogram of Silver valuing Rs. 1,35,000/- which they were carrying in a bag together with cash amount of Rs. 20,000/- by plying away their scooter, which is valued at Rs. 10,000. On seeing the incident of loot, the people standing thereby caught hold the accused Gajendra @ Munno @ Manoj Bhupatbhai Dabhi. However, another accused Lalo @ Dharmesh Haribhai Gohil managed to flee away from the scene of offence. After investigation, Police laid charge-sheet before the trial Court against the accused Gajendra @ Munno @ Manoj Bhupatbhai Dabhi, who was arrested at the time of alleged offence and the matter was numbered as Criminal Case No. 5817 of 2002. Thereafter, upon accused-Lalo @ Dharmesh Haribhai Gohil and Vijay Devabhai Rahod getting arrested by the Police, a supplementary charge-sheet came be laid before the trial Court, which culminating into Criminal Case No. 9970 of 2002. Since all the accused persons named in the FIR came to be arrested and charge-sheet against them came to be laid, the trial Court vide Order passed below Exh.88 in Criminal Case No. 5817 of 2002, consolidated both the cases viz., Criminal Case No. 5817 of 2002 and 9970 of 2002, to be heard together. 4. Since all the accused persons named in the FIR came to be arrested and charge-sheet against them came to be laid, the trial Court vide Order passed below Exh.88 in Criminal Case No. 5817 of 2002, consolidated both the cases viz., Criminal Case No. 5817 of 2002 and 9970 of 2002, to be heard together. 4. After investigation, the Police filed charge-sheet before the learned JMFC, Rajkot against the accused persons for the offence punishable under Section 394, 188, 216, 414 and 114 IPC. The accused were given copies of the charge-sheet papers, as per the provisions of the Gujarat Criminal Manual. 5. At trial, the respondents pleaded not guilty and claimed to be tried. The learned JMFC, Rajkot after passing Order below Exh.88 in Criminal Case No. 5817 of 2002, consolidated the matters and after duly appreciating the prosecution evidence brought on the record, acquitted the accused of the charge alleged, giving rise to the present Appeal by the State of Gujarat against accused-Gajendra @ Munno @ Manoj Bhupatbhai Dabhi. 6. Heard learned APP Mr. Rutvij Oza appearing for the appellant-State and learned advocate Mr. K.K. Patel, learned advocate for the respondent-accused. 7. Learned APP Mr. Oza urged that the impugned judgment and order dated 28th March 2005passed by the learned JMFC, Rajkot in Criminal Case No. 5817 of 2002 - consolidated Criminal Case No. 9970 of 2002 is contrary to law, proved facts and evidence available on the record. He further urged that the learned Magistrate has not properly appreciated the evidence adduced and documents produced on the record of the case; that the learned Magistrate has erred in acquitting the respondent by not believing the injured complainant, who was supported by his brother Jayesh and Dr. Vasavada. That, the learned Magistrate ought not to have taken into consideration, minor omissions and contradictions in the evidence of prosecution witnesses, as there was a long lapse of time between the happening of incident and taking evidence of the witnesses. That the learned trial Judge has erred in acquitting the respondent raising doubts about recovery of muddamal as the panchas have turned hostile. That the learned Magistrate has failed to consider that there was no reason for the Investigating Officer to keep big stock of silver for his own use, who has drawn panchnama. That the learned trial Judge has erred in acquitting the respondent raising doubts about recovery of muddamal as the panchas have turned hostile. That the learned Magistrate has failed to consider that there was no reason for the Investigating Officer to keep big stock of silver for his own use, who has drawn panchnama. That the trial Court has erred in acquitting the respondent-accused by holding that no test identification parade was held. According to the learned APP, the learned trial Judge ought to have appreciated the fact that the incident took place in the broad day light and there was no question of mis-identity of the respondent by the prosecution witnesses. Further, the learned Magistrate ought to have appreciate that there was no reason for complainant to falsely implicate the respondent in the crime in question, as there was no axe to grind against him or any of the co-accused. That the learned Magistrate has committed a grave error in not considering the evidence of injured complainant, which was supported by minor witness Mahesh, who was present at the scene of incident who occurred during the day light and they have also identified the muddamal silver, and the evidence of independent witnesses, investigating officer who have extended support to the panchnama and also the case of the complainant was duly corroborated by the evidence of doctor. Lastly, learned APP contended that the learned Magistrate has erred in acquitting the accused holding that the prosecution has failed to prove the case beyond reasonable doubt. He, therefore, urged this Court to allow this Appeal and quash and set-aside the impugned judgment and order dated 28th March 2005 passed by the learned Judicial Magistrate, First Class, Rajkot in Criminal Case No. 5817 of 2002 consolidated with Criminal Case No. 9970 of 2002. 8. On the other-side, learned advocate Mr. K.K. Patel appearing for the respondent-accused supported the judgment and order passed by the learned Magistrate contending that there is no material contradictions in the deposition of both the alleged witnesses. That, both of them have turned hostile. That, the muddamal Silver was sold to a goldsmith and a certificate in this connection was also issued. That complainant has never stated specifically that who had inflicted blow on Gajendra. As per the deposition of the prosecution witness, Mahesh had left for his home after the incident. That, both of them have turned hostile. That, the muddamal Silver was sold to a goldsmith and a certificate in this connection was also issued. That complainant has never stated specifically that who had inflicted blow on Gajendra. As per the deposition of the prosecution witness, Mahesh had left for his home after the incident. Panch-witness Jayesh who came after 30 to 45 minutes after the incident. That no Test Identification Parade was carried out by the Investigating Agency to identify the accused involving them in the offence alleged. That, there is no recovery of muddamal from the accused during the investigation. The learned Magistrate has committed no error in acquitting the accused from the charges levelled against them, after carefully considering the evidence produced by the prosecution, and hence, it was urged before this Court to dismiss the appeal. 9. Having considered the facts of the case, submissions made by learned advocates for both the sides and record of the trial Court proceedings placed before this Court, before discussing the evidence of prosecution witnesses, this Court would like to refer to settled legal position, when the trial Court had arrived at a conclusion of acquittal of both the accused for the charges levelled against them. 10. In case of Kanu Ambu v. State of Maharashtra, reported in (2002) 9 SCC 639 has held and observed as under: "15. On a consideration of the evidence, we think that the reversal of the order of acquittal by the High Court was not warranted. Though the High Court has power on a review of the evidence to reverse the order of acquittal, yet in doing so, it should not only consider all matters on record including the reasons given by the trial Court in respect of the order of acquittal, but should particularly consider those aspects which are in favour of the accused and ought not also to act on conjunctions or surmises nor on inferences which do not arise on the evidence in the case. In the view we have taken, the appeal is allowed, the judgment of the High Court is reversed and the appellant acquitted. The appellant being on bail, his bail bond is cancelled." 11. In case of Selvaraj v. State of Karnataka, reported in AIR 2015 SC 3834 , the Apex Court has held and observed as under:- "11. In the view we have taken, the appeal is allowed, the judgment of the High Court is reversed and the appellant acquitted. The appellant being on bail, his bail bond is cancelled." 11. In case of Selvaraj v. State of Karnataka, reported in AIR 2015 SC 3834 , the Apex Court has held and observed as under:- "11. It is apparent that the High Court has failed in its duty to come to the close quarter of the reasonings employed by the trial Court while reversing the judgment of acquittal. Appreciation of evidence to hold it to be credible was required which has not been done by the High Court at all. In a cursory manner without re-appraisal of the evidence and probabilities, the judgment of acquittal has been reversed. Though the High Court has the power to reappraise the evidence in appeal against acquittal, but that has not been done. It is incumbent upon the High Court while reviewing the evidence and to reverse the order of acquittal to consider all matters on record including the reasons given by the trial Court in respect of the order of acquittal and should consider all the circumstances in favour of the accused which has not been done." 12. Now, let us examine evidence laid by the prosecution to prove the guilt of the accused before the trial Court. The complainant was examined at Exh.35 and the material witness viz., Mahesh Govindbhai [Exh.90]. Both these witnesses have certainly supported the case of prosecution but, it is pertinent to note that the complainant has never disclosed that who was the assaulter and who caused injuries on the person of the complainant as well as witness-Mahesh Govindbhai. It is not disclosed by him that who was the accused who ran away with scooter. Of course, in the complaint produced at Exh.151, it appears that names of the accused are disclosed by the complainant, but he came to know about the names of the accused from others. No description of the accused were given in the complaint. It is also material omission on the part of the Investigating Agency that during the investigation, no test identification parade was carried out of the accused, and therefore, there is no evidence available with the prosecution that who was the real accused who committed the offence, as alleged by the prosecution. It is also material omission on the part of the Investigating Agency that during the investigation, no test identification parade was carried out of the accused, and therefore, there is no evidence available with the prosecution that who was the real accused who committed the offence, as alleged by the prosecution. There is no specific evidence laid by the complainant and PW-Mahesh Govindbhai as to who had given blow with 'trikam' and who was the accused, who ran away with scooter and silver ornaments. Of course, the complainant in his testimony at Exh.35 has stated that the person who had given blow by 'trikam' was caught at the spot of incident and the other person ran way with scooter having bag of silver ornaments. From the deposition, it transpires that at the spot one person named Manu @ Manoj @ Gajendra had given blow with 'trikam' and caused head injuries to the complainant. While as per the prosecution case, the complainant was given 'trikam' blow by the accused Dharmesh @ Lalo and thereby caused head injury. Therefore, the evidence of the complainant as well as prosecution story is completely contrary to each other. As per the oral testimony of the complainant, he has stated that he had made a phone call at his residence from a Panwalla shop. When his phone-call was received by his sister-in-law [Bhabi], the complainant informed her of the incident having taken place and thereafter, his brother and father came rushing to the place of incident. He has further stated that other persons had gone to catch the accused. Deposition of PW-Jayeshbhai Tulsibhai Sorathia at Exh.104 is also required to be considered as this witness has stated that while receiving the phone call from the lady member engaged in the silver job-work, he came to know about the incident. This witness reached at the place of incident and at that time, his brother Jitesh Tulsibhai [i.e., the complainant] was not present at the scene of offence. He alone visited the place of offence. The evidence of complainant as well as his brother is clearly contradictory to each other. It is, therefore, difficult to accept and rely on such inconsistent evidence available on the record. He alone visited the place of offence. The evidence of complainant as well as his brother is clearly contradictory to each other. It is, therefore, difficult to accept and rely on such inconsistent evidence available on the record. It is further stated by the complainant in his testimony at Exh.35 and in the cross examination that after the incident, the accused was there at the place of offence for about twenty minutes and thereafter HUDCO Police came there and caught the accused, till then he was waiting at the same place. At this juncture, if we consider the evidence of the prosecution witness-Jayesh Tulsibhai Sorathiya at Exh. 104, he has stated in his deposition that the accused was caught by the members of mob from Babariya colony, and thereafter, he was taken to HUDCO Police Chowki. The evidence of the complainant remaining present at the place of evidence for twenty minutes, till the accused Gajendra was caught by the HUDCO Police, as alleged, clearly contradicts the evidence of the PW-Jayesh [Exh.104]. It is found from the record that the weapon used in the offence in causing injury to the complainant as well as witness was never recovered by the investigating agency during the investigation. Further, it transpires that the complainant has declared before the Doctor by giving history that he was assaulted by a stranger and it is confirmed by the evidence of Doctor at Exh.144. The prosecution has examined one another material witness at Exh.108 i.e., ASI-Shantilal Karsanbhai. This witness was performing his duty in a Police Mobile and was a retired ASI. If we consider evidence of this witness, it appears that on receiving information of the incident, he came to Street No. 4 in Morarinagar and as per his statement, the accused named Gajendra was caught in a room situated on the upper-floor of a factory. The complainant was found in an injured condition. This evidence is clearly contrary to the evidence given by the complainant. There is material contradiction between the version of complainant, witness-Mahesh and another witness-Jayesh in respect of whether the complainant went to call prosecution witness Mahesbhai or Mahesbhai went to call at the residence of the complainant on the day of the incident before starting from their house. This evidence is clearly contrary to the evidence given by the complainant. There is material contradiction between the version of complainant, witness-Mahesh and another witness-Jayesh in respect of whether the complainant went to call prosecution witness Mahesbhai or Mahesbhai went to call at the residence of the complainant on the day of the incident before starting from their house. The Investigating Officer had also admitted that no Test Identification Parade was carried out in presence of the complainant or prosecution witness Mahesbhai nor muddamal was seized, or recovered in presence of the panchas. It also came on the record that muddamal was placed in open condition. Another witness examined by the prosecution namely Apdanbhai Mohanbhai at Exh.38; Pareshbhai Mansukhbhai at Exh.39 and Ratangiri Rughnathgiri at Exh.40 have not supported the prosecution case. They have not confirmed that the accused Gajendra @ Munno @ Manoj Bhupatbhai Dabhi had assaulted the complainant and this accused was arrested as well as another accused Dharmesh ran away with silver ornaments on scooter of the complainant. As per panchnama produced at Exh.111, the muddamal produced at Exhs.42 to 85 was not claimed by any body and therefore there is no connection of the accused in the offence alleged. As per the narration made in the panchnama at Exh.141, silver was seized from the witness-Dilip Dadubhai, as stated by the accused Vijay Deva Rathod, but this statement was not supported by the panchas examined by the prosecution. Panch witness-Dilipbhai Dattubhai Devkar examined at Exh.131 has also denied in respect of recovery of silver brick and the muddamal. From the evidence placed before the Court by the prosecution, the material witnesses included in the complaint namely Maheshbhai, Jayeshbhai and retired ASI-Shantilal have given contrary evidence to the prosecution case. The weapon used in the incident was never recovered by the investigating agency during the course of investigation. There is no evidence of causing injury to the complainant or the witness having been clearly proved by the prosecution. The alleged muddamal recovered from the possession of the accused at Exh.42 to 85 were never proved, as the panchas have not supported the prosecution case. The evidence of Doctor at Exh.144 is also not supporting the prosecution case, and therefore, the prosecution has failed to prove the case beyond reasonable doubt against the accused. 13. The alleged muddamal recovered from the possession of the accused at Exh.42 to 85 were never proved, as the panchas have not supported the prosecution case. The evidence of Doctor at Exh.144 is also not supporting the prosecution case, and therefore, the prosecution has failed to prove the case beyond reasonable doubt against the accused. 13. Further, testimony of the prosecution witnesses appear not to be consistent or trustworthy, and therefore also, that cannot be relied at all. The material evidence examined by the prosecution at Exhs.38, 39 and 40 have not supported the theory of prosecution, and therefore, the learned trial Judge has rightly come to the conclusion of acquitting the accused from the charges levelled against him. 14. Thus, considering the reasons given by the trial Court and on appraisal of the evidence, in our considered opinion, the view taken by the trial Court in acquitting the respondent-accused is reasonable view, which does not call for interference in appeal. 15. Resultantly, Criminal Appeal fails and the same is dismissed with no separate order as to costs. Bail bond stands cancelled.