JUDGMENT : Anant S. Dave, J. 1. This appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973, against the order of acquittal dated 27.08.2004, passed by the learned Additional Sessions Judge (Fast Track Court No. 5) Bharuch in Sessions Case No. 102 of 2003, whereby, the respondent-original accused No. 4 came to be acquitted of offences under Section 396, 120-B, 427 of the Indian Penal Code r/w. Section 135 of the Bombay Police Act. 2. The short facts leading to filing of this appear is as under: "2.1 That on 10th February 2003 when the complainant and her husband were sleeping in their house at about 1:00 a.m. on the intervening night between 10/2/2003 and 11/2/2003 the assailants knocked at the front door and rear door of their house wherein some of the persons were demanding 'beedi' from the front door and from the rear door of their house some of the persons were demanding water. Since the complainant was so frightened because of the sudden commotion she anticipated some evil things to happen and urger her husband to run away from the house but in the meanwhile the rear door was broken by the assailants and started assaulting the husband of the complainant. In the brightness of the electric light the complainant identified the original accused No. 1, 2 and 3 having in possession of lethal weapons. All the accused persons assaulted upon the husband of the complainant with the lethal weapons and damaged the household properties and thereafter looted their ornaments worth Rs. 2800/- and thereafter left the scene. 2.2 The complainant lodged an FIR at Jhagadia Police Station in the morning and accordingly the investigation was initiated by the Police and after completing the investigation the charge sheet came to be filed before the competent Court. Since the offence is exclusively triable by the Court of Sessions, the competent Court has committed the case to the Court of Sessions, which was numbered as Sessions Case No. 102 of 2003." 3. Since the offence is exclusively triable by the Court of Sessions, the competent Court has committed the case to the Court of Sessions, which was numbered as Sessions Case No. 102 of 2003." 3. Thereafter, out of Sessions Case No. 102 of 2003, various appeals came to be filed before this Court by the accused as well as the State of Gujarat against conviction as well as acquittal order by the trial Court and also a Confirmation Case No. 8 of 2004 in view of sentence of death awarded to accused No. 1 upon conviction under Section 396 r/w. Section 120-B of the Indian Penal Code. That criminal appeal No. 639 of 2005 with criminal Appeal No. 484 of 2006 came to be decided by a common oral judgment dated 22.6.2011. The criminal appeal No. 639 of 2005 was preferred by original accused No. 3, who was convicted for the offence punishable under Section 396 and 302 r/w. Section 120-B and section 427 of IPC and was sentenced to undergo various sentences and all the sentences were ordered to run concurrently. Criminal Appeal No. 484 of 2006 was filed by the State of Gujarat against the acquittal of accused Nos. 1, 2 and 4. In the aforesaid Sessions Case i.e. Sessions Case No. 77 of 2004. 4. Confirmation case being C.C No. 8 of 2004, in which sentence of death was to be confirmed by this Court came to be decided along with criminal appeal No. 1687 of 2004 filed by original accused No. 2 and 3 of Sessions Case No. 102 of 2003, in which by a common C.A.V. judgment dated 3.04.2006, sentence of death qua accused No. 1 was converted into life imprisonment, while criminal appeal No. 1687 of 2004 filed by A-2 and A-3 came to be dismissed and sentenced conviction of the appellants namely A-2 and A-3 came to be confirmed. On 5.10.2006, the Division Bench consisting of Honourable Mr. Justice C.K. such and Honourable Mr. Justice Sharad D. Dave, (as his Lordships then were), passed the following order: "We have considered the endorsement made by the Registry and we are also supplied by a copy of the decision and judgment confirming the conviction of three accused persons while dealing with the confirmation Case No. 8 of 2004 and Criminal Appeal preferred by the convicts being Criminal Appeal No. 1687 of 2004. The appeal against the order of conviction when was taken up for hearing with Confirmation Case No. 8 of 2004, the present appeal was already admitted and Court had already issued warrant in sum of Rs. 5,000/- against acquitted accused. So technically, the present appeal against the order of acquittal of accused No. 4 was pending on the date on which the appeal against the conviction and sentence was being heard by this Court. It appears from the copy of the judgment in Criminal Confirmation Case No. 8 of 2004 and Criminal Appeal No. 1687 of 2004 that the appeal against the order of conviction be decided by the Court on 3.4.2006. The present appeal was preferred in the month of January, 2006 and thereafter admitted on 21.3.2006. Registry ought to have drawn the attention of the Bench dealing with the appeal against the order of conviction about the admission of the appeal against the order of acquittal of one of the accused. Now, we are of the view that it would be in the fitness of things to obtain appropriate orders from the Hon'ble the Chief Justice, so the present appeal can be placed before the Bench which has applied its mind and evaluated the judgment earlier while dealing with the appeal against the order of conviction. Registry, therefore, is directed to obtain appropriate orders from the Hon'ble the Chief Justice in the background of the above stated contingency as the Hon'ble the Chief Justice deems fit". Thus, it appears that when Confirmation Case No. 8 of 2004, and Criminal Appeal No. 1687 of 2004 were heard by a Division Bench consisting of Honourable Mr. Justice R.P. Dholakia and Honourable Mr. Justice M.D. Shah, JJ, as his Lordships then were, this present Criminal Appeal 186 of 2006 was not shown on the board due to inadvertence on the part of the Registry, and therefore, this appeal is left out and was ordered to be heard finally with consent of the parties. 5. Ms. Moxa Thakker, learned Additional Public Prosecutor appearing for the respondent-State, has taken us to record of the case and submitted that the trial Court has failed to appreciate 27 witnesses and 28 documentary evidences in support of the charge levelled and established by the prosecution and discovery panchnama under Section 27 produced at Exh. 5. Ms. Moxa Thakker, learned Additional Public Prosecutor appearing for the respondent-State, has taken us to record of the case and submitted that the trial Court has failed to appreciate 27 witnesses and 28 documentary evidences in support of the charge levelled and established by the prosecution and discovery panchnama under Section 27 produced at Exh. 25 specifically found blood stains and Serological Report about human blood establishes the guilt of the accused. Even disbelieving the identification parade panchnama, complainant and her son failed to identify respondent-accused No. 4 herein, when other evidences in the form of medical about injuries and usage of weapons on the body of the deceased, learned judge ought to have recorded conviction and order maximum sentence accordingly. However, learned APP is not able to submit that why certain findings recorded by a Division Bench in the judgment and order dated 3.4.2006, rendered in Confirmation Case No. 8 of 2004 with Criminal Appeal No. 1687 of 2004, with regard to findings qua present accused No. 4 are not to be followed and accepted by this Court. 6. Shri Bhushan Oza, learned counsel appearing for respondent-accused No. 4 has relied on specific findings of no guilt of accused No. 4 elaborately recorded with reasons in paragraph 62 of the judgment in Sessions Case No. 102 of 2003 by learned trial judge again confirmed vide judgment and order dated 3.4.2006 in Confirmation Case No. 8 of 2004 etc., Learned counsel for the respondent herein emphasis about the incorrect identity of A-4 as Sanjay, though shown in the charge sheet as accused, but neither wife nor the son of the deceased could identify him and other panchas have turned hostile leaving no evidence supporting the case of the prosecution. It is submitted in another Sessions Case other accused came to be acquitted and upon a challenge in appeal filed by the State of Gujarat, the order passed by the trial Court acquitting the accused came to be confirmed vide common order and judgment dated 22.6.2011. Therefore, it is submitted that the present appeal deserves to be rejected. 7. Having heard learned counsel for the parties and learned APP and Mr. Therefore, it is submitted that the present appeal deserves to be rejected. 7. Having heard learned counsel for the parties and learned APP and Mr. Bhushan Oza, learned counsel for A-4, perusal of the record and judgment under challenge, we are in agreement with the findings recorded by the learned trial judge in the judgment dated 27.08.2004, in Sessions Case No. 102 of 2003, and for the sake of convenience, we produce paragraph 54, while discussing the evidence appearing on the record, it is held as under:- "54 so far as concerned accused No. 4 Sanjay alias Arjun Laljibhai Gami, there are 4 evidence against him (I) arrest panchnama Exh.70(ii) discovery panchnama Exh.42 by which he has pointed out the place of incident (iii) weapon recovery panchnama Exh.55 as well as (iv) test identification parade panchnama Exh. 85. So far as concerned panchnama Exh.70, it is simply arrest panchnama and nothing incriminating has been found from the accused at the time of arrest. Hence mere arrest of the accused is not proof of any commission of any crime and it cannot be said incriminating material against accused person. So far as concerned panchnama Exh. 42, that panchnama has been drawn on 5-5-03. The incident has been happened on 11-2-03 and then after panchnama of the scene of offence was also drawn by the investigating officer and a map was also drawn by the Circle Inspector in respect of Investigating agency. Hence, the place of incident was not unknown to the police and the object or the facts which were in the knowledge of Investigating Officer cannot be said to be fallen under Sec. 27 of Evidence Act. Moreover, this panchnama has been drawn after three months of the incident. Hence, in the opinion of this Court, panchnama Exh. 42 cannot be considered as panchnama under Sec. 27 of the Indian Evidence Act and it can never be used against the accused as an incriminating material for him and it cannot be a base of conviction. So far as concerned weapon recovery panchnama Exh. 55, no blood stains have been found by the FSL on the weapon which has been allegedly recovered from the accused vide panchnama Exh. 55. Hence, this panchnama is also not sufficient to cannot the accused Sanjay with the alleged crime. So far as concerned test identification parade Exh. So far as concerned weapon recovery panchnama Exh. 55, no blood stains have been found by the FSL on the weapon which has been allegedly recovered from the accused vide panchnama Exh. 55. Hence, this panchnama is also not sufficient to cannot the accused Sanjay with the alleged crime. So far as concerned test identification parade Exh. 85, it is to be noted that witness Kapilaben and Sanjay has not identified the accused Arjun alias Sanjay during their deposition before the Court. Not only that, but witness Kapilaben has categorically refused that she had never identified the accused Arjun alias Sanjay any time during the course of investigation. She has refused to have participated in any time test identification parade. Moreover, this witness has clarified in her cross examination that the six persons whose names she has given and one of them were Sanjay but that Sanjay is a different person and he is resident of village Kanchanpari. This witness has categorically clarified that Sanjay whose name she has given is not a Sanjay resident of village Songadh Dist Surat. It means that no doubt similar name has been given by the witness but that similar name was given in respect of other accused namely Sanjay resident of village Kanchanpari and not in respect of the present Sanjay accused No. 4. Another Sanjay is also shown as absconding in this case and he is still absconding hence, his name has been shown by the Investigating Agency as absconder in the charge sheet. Hence, Sanjay which is mentioned by the witness in the evidence is not Sanjay accused No. 4 but he is another Sanjay who is still absconding and whose name mentioned in the Chargesheet as absconding person witnesses have clarified the situation and therefore, there is no ambiguity remained in this regard. Hence, Sanjay which is mentioned by the witness in the evidence is not Sanjay accused No. 4 but he is another Sanjay who is still absconding and whose name mentioned in the Chargesheet as absconding person witnesses have clarified the situation and therefore, there is no ambiguity remained in this regard. So far as concerned accused No. 4, absolutely there is no convincing material against him brought on record by the prosecution hence, his involvement in the alleged offence is not at all established by the prosecution and therefore, this accused is ought to be acquitted from the charges levelled against him." When challenge was to the findings and recording guilt of the accused in Confirmation Case No. 8 of 2004, the very evidence fell into consideration of the Division Bench to which reference is already made and in paragraphs 20 and 21, it was observed as under qua role of accused No. 4: "21. Another important witness examined by the prosecution is Sanjay Bhodarbhai, son of the deceased and eye witness as P.W. No. 5 at Ex. 24. Before recording the evidence of this witness, the Court has ascertained his age, seriousness of the matter and his ability to depose. He has stated in his deposition that everybody in the family were present in the house when the incident took place. He has categorically deposed and supported the say of his mother. It reflects from paragraph 2 of his evidence that the persons who entered into their house by breaking open the door and beaten his father were having deadly weapons namely, sword, axe, spear, gupti, etc. He has further deposed that Devising gave sword blow on the head of his father and hence, his father fell down and Bachiya and Kamlesh gave axe blows. He has identified three persons present in Court as Devising, Kamlesh and Daud. He has also deposed that after the incident police has recorded his statement. Since there were minor contradictions in his police statement, the otherside has tried to establish by way of cross examination wherein he has admitted that he has not stated to the police that Kamlesh was having axe in his hand. It has also been deposed that during the course of incident, neighbours did not come to their rescue. Since there were minor contradictions in his police statement, the otherside has tried to establish by way of cross examination wherein he has admitted that he has not stated to the police that Kamlesh was having axe in his hand. It has also been deposed that during the course of incident, neighbours did not come to their rescue. On a question as to whether any conversation took place between his father and mother, he has stated that no conversation had taken place between them. He has also deposed regarding the robbery and damage caused to the properties. He has stuck to his version in his cross examination also. As far as identification of the persons is concerned, it has come out from his cross examination in paragraph 7 that as the light was on in the house at the time of incident, he was able to identify the accused. In short, just like his mother, he has supported the say of the prosecution in toto. 22. The prosecution has also examined Raising, the neighbour, as P.W. No. 4 at Ex. 22. According to him, at the time of incident, he was in his house and when reached there, he saw the accused along with other people and could identify Devisingh, Kamlesh, Daud, Bachiyo, Gatu and Sanjay. He has identified three persons namely, Devising, Kamlesh and Daud present in the Court as the persons seen along with other accused at the place of incident. He has deposed that after the accused ran away, he went into the house of Bhodarbhai where he saw Bhodarbhai was killed by those persons and his family members namely, Kapilaben, Sanjay and two daughters crying. He has also deposed that he has identified all the persons who were coming out from the house of Bhodarbhai with the help of light. In his cross examination, he has admitted that at the time of incident, he was in deep sleep at his residence and because of noise, he got up and came out of the house. The court has asked some questions to this witness and it has been established that he was threatened by the accused and also restrained from going and deposing before the Court. During the court questions also, he has categorically deposed having seen the accused coming out of the house of the deceased because of presence of light." 8. The court has asked some questions to this witness and it has been established that he was threatened by the accused and also restrained from going and deposing before the Court. During the court questions also, he has categorically deposed having seen the accused coming out of the house of the deceased because of presence of light." 8. Thus, a Division Bench of this Court almost concluded that prosecution has failed to establish its case beyond reasonable doubt, qua accused No. 4. But acquittal appeal, the present one was not listed before the Bench. No final order was passed. We are not unmindful of the fact that heinous crime was committed by the accused, who were charged with Sections 302, 396, 120-B etc., and the present accused No. 4-respondent herein whose name was shown in the charge sheet, but the nature of evidence surface on record do not establish any connection of accused No. 4 with the crime. And thus, prosecution has failed to prove its case beyond reasonable doubt. We base our above conclusion of the findings recorded by earlier Division Bench in the order dated 03.04.2004 in Criminal Confirmation Case No. 8 of 2004. 9. Independent of the above, we have also perused and considered findings of the trial Court about failure on the part of eye witnesses to identify present respondent/A-4 and no other material surfaces on record establishing their guilt with the crime. We are of the view that acquittal recorded by the trial Court do no warrant any interference by this Court. 10. For the foregoing reasons, the order of acquittal dated 27.08.2004, passed by the learned Additional Sessions Judge (Fast Track Court No. 5) Bharuch in Sessions Case No. 102 of 2003, whereby, the respondent-original accused No. 4 came to be acquitted of offences under Section 396, 120-B, 427 of the Indian Penal Code r/w. Section 135 of the Bombay Police Act, is confirmed. R & P, if lying here be sent to the Court below, forthwith.