JUDGMENT : B.N. Karia, J. Challenging the judgment and order dated 2nd December 2005 passed by the learned Addl. Sessions Judge, Fast Track Court No.1, Amreli in Sessions Case No. 58 of 2005, the appellant-State of Gujarat has preferred this Appeal under Section 378 [1] (3) of the Code of Criminal Procedure, 1973 [“CrPC” for brevity]. 2. Facts of the prosecution case, in short, are:- 2.1 Complainant-Babubhai Vitthalbhai Panara is resident of village- Lathi. Among his children, he had a son named Vipulbhai, who was working as a journalist. On 13th May 2005, at about 11 O’clock at night, his son left home on his cycle to go to the village and thereafter, his nephew Manubhai Parshottambhai Panara came to his house at about one o’clock in the night on 14th May 2005 and informed that someone has assaulted Vipul. Therefore, the complainant immediately woke-up his elder son Dipak and told him that someone has assaulted Vipul, therefore, let us go and find out as to where he is. Therefore, Dipak was sent in search of Vipul and as he went into the village and searched, Vipulbhai was lying in blood smeared condition near a small temple of Setiyari Hanuman. As the complainant was informed about such fact, he immediately went to the small temple of Setiyari Hanumandada with his son Dipak and after reaching at the spot, he saw that his son was lying in blood smeared condition near the small temple of Setiyari Hanumandada and the complainant found that someone has murdered him. As stated by the complainant, he did not doubt or suspect anyone as to who had murdered Vipul and why. Thus, complaint in this respect was lodged by the complainant in Lathi Police Station on 14th May 2005. On the basis of the above stated complaint of the complainant, the police registered offence u/s. 302 IPC against unknown person and the Investigating Officer of the case took over the investigation and recorded the statements of concerned witnesses, required panchnama were drawn, muddamal was seized and medical evidence was collected. As offence was constituted against the accused persons, charge sheet was filed against them. 2.2 Copies of police investigation papers were supplied to the accused by the Lower Court. As offence was constituted against the accused persons, charge sheet was filed against them. 2.2 Copies of police investigation papers were supplied to the accused by the Lower Court. As the offence against the accused was sessions triable, the learned Chief Magistrate committed the case to the Court of Sessions on 22nd July 2005, as per provision of Section 209 CrPC. At trial, the accused pleaded not guilty and claimed to be tried, and therefore, prosecution led evidence in support of its case. However, at the end of the trial, the learned trial Judge was pleased to acquit the respondents from the charges, giving rising to filing of the present Appeal by the appellant-State. 3. Heard learned APP Ms. Moxa Thakker appearing for the appellant-State. 4. Learned APP Ms. Moxa Thakker vehemently urged that the impugned judgment and order of acquittal passed by the learned Addl. Sessions Judge, Fast Track Court No. 1, Amreli in Sessions Case No. 58 of 2005 dated 2nd December 2015 is contrary to law, evidence on record of the case; though the prosecution has proved the charges beyond reasonable doubt against the accused persons. She has further urged that the findings of the learned trial Judge of not proving the offence punishable under Section 302 read with Section 34 IPC is contrary to facts and evidence on record. That, the complainant- Babubhai Vitthalbhai Panara, who is father of the deceased and his son-Dipakbhai [Exh. 38] have clearly stated that there was an unhappy incident which took place between the deceased and the accused persons at around 7 O’clock in the evening, and that there were some altercations between them, and therefore, due to that there was an unhappiness between the deceased and the accused. That, the prosecution witness Sabir Bachubhai [PW: 13 Exh. 36] and Sarifbhai Sabbirbhai [PW- 14 Exh. 37] have identified the accused persons in presence of the Executive Magistrate in a test identification parade and the panchnama Exh. 45 was drawn which gets duly supported by PW-24 : Jagdishbhai Maganbhai [Exh. 50]. That, Taluka Executive Magistrate Shri Dhamjibhai Gordhanbhai Varmora at Exh. 43 has also supported the case of prosecution. That, evidence of PW-1 Bharatbhai Virjibhai [Exh. 10]; Dog-handler – ASI Shri Dhayatar vide his report at Exh. 45 was drawn which gets duly supported by PW-24 : Jagdishbhai Maganbhai [Exh. 50]. That, Taluka Executive Magistrate Shri Dhamjibhai Gordhanbhai Varmora at Exh. 43 has also supported the case of prosecution. That, evidence of PW-1 Bharatbhai Virjibhai [Exh. 10]; Dog-handler – ASI Shri Dhayatar vide his report at Exh. 64 has clearly proved the place of incident with the help of smell sniffed by the dog and on the basis of which, the dog went at the place where the accused had taken shelter and upon going there, they were caught. She has further stated that the accused were not found from their residential premise, after the incident, as the said evidence has come out from the evidence of PSI-Ramchandra Karamsi Kava [PW: 33 - Exh. 69]. Dr. Arunkumar Vishnudev at Exh. 51 has opined that the injuries have been caused to the deceased by knifes and the said knifes were recovered from the accused. Panchnama Exh. 16 is with regard to clothes of the respondents-accused. FSL report shows that blood found from the clothes and the blood of the accused is of the same group. That, all these evidences; if simultaneously considered, it corroborates with each other. That, prosecution has proved the charges levelled against the accused and there are sufficient corroborative evidences against the accused, and therefore, it was requested by her to quash and set-aside the impugned judgment and order passed by the learned trial Judge, by allowing this Appeal. 5. Per contra, learned advocate Mr. H.N Sevak appearing for the respondents vehemently opposed the submissions made by learned APP and urged that the prosecution has miserably failed to prove the guilt of the accused, involving them in the crime. That, most of the panch witnesses examined by the prosecution have turned hostile and have not supported the prosecution case. That, in the complaint, names of the accused were never disclosed nor any doubt was created by the complainant of the murder of his son at the hands of the respondents. There was no animosity of the deceased with the respondents. That, material evidence of the complainant and his son Dipakbhai does not disclose any doubt against the respondents, nor do they have any idea who had committed murder of deceased-Vipul. There was no animosity of the deceased with the respondents. That, material evidence of the complainant and his son Dipakbhai does not disclose any doubt against the respondents, nor do they have any idea who had committed murder of deceased-Vipul. That, the test identification parade conducted by the Executive Magistrate was not in accordance with the rules, and therefore, it cannot be relied at all by the prosecution. That, the complainant himself has not seen the offenders, nor his son Dipakbhai has eye witnessed the incident. There are material contradictions and inconsistencies in the oral depositions of father and the son, as well as that of the Investigating Officer, and therefore, they are not trustworthy or credible witnesses. That, Amarsinh was shown as a prosecution witness, who happens to be the material witness from the prosecution side, but for the reasons best known to the prosecution, he was not examined by the prosecution and no explanation has come forth for non examination of this witness. There is no evidence produced by the prosecution showing any mobile connection with the deceased and the accused. PW-Sabbir Bachhubhai has also denied to identify the accused before the Executive Magistrate. That, he was not informed by the Investigating Officer by a ‘Yadi’ to remain present in the Test Identification Parade. Both the panchas selected for identification parade panchnama were from barber community and they were cousins of the deceased Vipul. That, no independent panchas were selected in such a serious offence by the prosecution. That the panchas - Sabbir Bachhubhai [PW-13 : Exh. 36] and Sariff Sabbirbhai [PW-14 : Exh. 37] have turned hostile stating that they have not participated in the test identification parade of the accused persons, nor they were informed by Mr. Kavabhai, PSI to remain present as panchas. That, none of the prosecution witnesses have created any confidence in the trial Court as regard trustworthiness of their version, and therefore, prosecution has clearly failed to prove guilt of the accused. It was requested by learned advocate Mr. Sevak appearing for the respondents to dismiss the appeal and thereby confirm the impugned judgment and order dated 2nd December 2005 passed by the learned Addl. Sessions Judge, Fast Track Court No. 1, Amreli in Sessions Case No. 58 of 2005. 6. It was requested by learned advocate Mr. Sevak appearing for the respondents to dismiss the appeal and thereby confirm the impugned judgment and order dated 2nd December 2005 passed by the learned Addl. Sessions Judge, Fast Track Court No. 1, Amreli in Sessions Case No. 58 of 2005. 6. Having heard learned advocates appearing for the respective sides and considering the submissions made on behalf of rival sides and on perusal of the record, at this stage, we may refer to the recent decision of the Apex Court in the case of Kathi Bharat Vajsur and others v. State of Gujarat & Ors., reported at 2012 (3) GLR 1953, wherein the Apex Court had an occasion to consider as to whether the High Court was justified in interfering with the order of the acquittal passed by the learned Sessions Judge and for convicting the accused for the offence under section 302 read with section 34 of the IPC or not. The Apex Court in the said decision made observations on the aspect of scope and ambit of the appeal against the judgment and order of acquittal at paragraphs 20, 21, 22 and 23. “20. The circumstances in which an appellate court will interfere with the finding of the Trial Court are now well settled by catena of decisions of this Court. In Dwarka Dass v. State of Haryana, (2003) 1 SCC 204 , the dicta of all these decisions has been crystallized thus:- “2. While there cannot be any denial of the factum that the power and authority to apprise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating conviction, then and in that event the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial court, would have taken the other view. While re-appreciating the evidence, the rules of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge...” 21. While re-appreciating the evidence, the rules of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge...” 21. In the case of Narinder Singh v. State of Punjab, 2000 CrLJ 3462 (SC), this Court has held that the High Court is entitled to re-appreciate the evidence if it is found that the view taken by the acquitting Court was not a possible view or that it was a perverse or infirm or palpably erroneous view or the Trial Court taken into consideration inconsequential circumstances or has acted with material irregularity or has rejected the evidence of eyewitnesses on wrong assumptions.” 7. Now, if we examine evidence led by the prosecution, first of all, Dr. Arunkumar Vishnudev [Exh. 51] who prepared post mortem note of the deceased had described eight injuries on various parts of the body of the deceased. The said post mortem note is produced on record at Exh. 53. From the deposition of this witness, it is indisputably proved that it was a homicidal death due to profuse bleeding and hemorrhagic shock due to stab injury in right lung, stomach and small intestine which led to cardio-respiratory failure. 7.1 It appears from the evidence of prosecution witnesses that deceased Vipul was a Journalist by profession in a daily newspaper viz., “Aas Paas”. From the prosecution side, two material witnesses were examined i.e., Shri Babubhai Vitthalbhai [PW-8 : Exh. 25] and brother of the deceased Shri Dipakbhai Babubhai [PW-15 : Exh. 38]. As per the say of PW-8 Babubhai Vitthalbhai, who is the father of deceased-Vipul, he was informed by his son Dipak that on 13th May 2005 at about 19:00 hours, there was a hot discussion between the deceased and the accused, but if we consider the deposition of Investigating Officer [PW-33] Shri Ramesh K. Kava at Exh. 69, this fact was never disclosed during the police investigation. 7.2 PW-15 Dipakbhai Babubhai in his deposition at Exh. 38 says that this information was given to him by PSI Shri Kavabhai on the day of incident, and thereafter, his statement was recorded by the Police Officer. But, this witness has no information that in what connection and at what place, such a hot discussion was made with the deceased and the accused. 38 says that this information was given to him by PSI Shri Kavabhai on the day of incident, and thereafter, his statement was recorded by the Police Officer. But, this witness has no information that in what connection and at what place, such a hot discussion was made with the deceased and the accused. From these testimonies, collectively, it culls out that the alleged hot discussion between the accused and the deceased took place on 13th May 2005 in the evening and this fact was declared by the father of the deceased Shri Babubhai and brother Dipakbhai saying that this information was given by Mr. R.K. Kava-PSI. On the contrary, Mr. R.K Kawa, the Investigating Officer denies this fact of giving such information either to PW-8 Shri Babubhai Vitthalbhai or PW-15 Dipakbhai Babubhai. Complainant Babubhai Vitthalbhai has also deposed that his son was assaulted with knife by accused sitting in the Court, but he also admits in his cross examination that the incident was not seen by him. On the basis of statement of his son Dipak, he says that the accused assaulted his deceased son with knife. He has also admitted that his son Dipak is not an eye witness to the incident. 7.3 Now, if we examine testimony of PW-15 Dipakbhai Babubhai, brother of the deceased-Vipul given at Exh. 38, he says that at about 22:00 hours, while he was taking his dinner, his brother Vipul received a phone call on his mobile from one-Kalu Seladia. Deceased-Vipulbhai had a talk with the said Kalu Seladia saying that he was threatened of life by Salman, Yusuf and third person, whom he can identify on seeing. This Kalubhai Seladia is examined as PW-10 at Exh. 30. He is a panch-witness of Inquest Panchnama. But, he has not supported this fact, as stated by PW-15 Dipakbhai Babubhai. This witness has further stated that before the incident, there was no animosity with the accused or even there is none at present. He has also admitted that in a daily Newspaper “Aas Paas” certain news were published relating to gambling dens in Damnagar of Methli village. In this connection, Shri Amarsinhbhai and Dahyabhai of Boarkhiya came at the residence of this witness. Prosecution has not made any attempts to examined said Shri Amarsinh, though he is shown as a prosecution witness. He has also admitted that in a daily Newspaper “Aas Paas” certain news were published relating to gambling dens in Damnagar of Methli village. In this connection, Shri Amarsinhbhai and Dahyabhai of Boarkhiya came at the residence of this witness. Prosecution has not made any attempts to examined said Shri Amarsinh, though he is shown as a prosecution witness. No explanation has come forth as to why this witness was not examined by the prosecution. PW-15 Dipakbhai has also admitted that his brother, being a Journalist, was receiving such type of threats frequently. Therefore, possibility of dispute or animosity with deceased cannot be ruled out. 7.4 It is pertinent to note that no evidence was produced by the prosecution in respect of mobile calldetails of the deceased or any other witnesses. Investigating Officer has made arrangements for conduct of test identification parade of the accused in presence of Taluka Executive Magistrate PW-19 Shri Dhamjibhai Gordhanbhai where Sabbirbhai Bachhubhai denied to identify the accused in presence of the Executive Magistrate. He was not informed by the I.O to remain present in identification parade in writing. There is no description of the dummy candidates, nor any information provided of age, height or description of their body in the panchnama of identification parade produced on record at Exh. 45. It transpires that no proper care was taken in conducting the test identification parade and even in drawing the panchnama. Further, the Executive Magistrate Shri Dhamjibhai Gordhanbhai Varmora in his deposition at Exh. 43 has admitted that there were in all eight members; including the accused, who remained present at the time of test identification parade and preparation of panchnama. He has deposed that Serial No. 5 was written twice by mistake. He has also admitted that Shri Nanu D. Makwana could have identified PW-Sabbir as an assaulter. Both panchas of this panchnama were from Barber community and cousins of maternal aunt of the deceased Vipul. Instead of independent panchas, the prosecution has examined PW-14 Sabbir Bachhubhai [Exh. 36] and PW-14 Sariff Sabbirbhai [Exh. 37]. They have clearly stated that they have not attended the test identification parade. No documents were produced by the prosecution informing them in writing to remain present in the test identification parade. Therefore, this panchnama itself is a doubtful document and it cannot be relied by the Court. 36] and PW-14 Sariff Sabbirbhai [Exh. 37]. They have clearly stated that they have not attended the test identification parade. No documents were produced by the prosecution informing them in writing to remain present in the test identification parade. Therefore, this panchnama itself is a doubtful document and it cannot be relied by the Court. 7.5 Another witness who was present at the time of preparing test identification parade panchnama viz. PW-24 : Jagdishbhai Maganbhai Ramani [Exh. 50] has stated in his deposition that he had no idea when Sabbirbhai came. According to him, when he went to the office of Executive Magistrate, accused persons were sitting with 2 to 3 police personnels along with Investigating Officer Mr. Rameshchandra Karamsi Kava. He also admits that while entering into the office of Executive Magistrate, they can see the other side. He also admits that the accused were seen by Sabbirbhai, and thereafter, he visited the office of Executive Magistrate and stayed there for half-an-hour and in his presence, no inquiry was made to the accused by the Executive Magistrate. This witness has no idea what facts were written in the panchnama by the Executive Magistrate, nor was it read over to him. Thus, he has no idea in respect of panchnama; except his signature put by him and by one Rajubhai. In the complaint at Exh. 26 recorded by Mr. R.K Kava, PSI, no names of the accused were declared and it was clearly stated that there was no doubt against the accused by the complainant, who is father of the deceased-Vipul. On the contrary, he has admitted that he has no idea who had committed murder of his son-Vipul and for what purpose. He has no doubt against anybody in respect of murder of his son. This complainant also admits that on 15th May 2005, he was inquired by the Police. PW-15 Dipakbhai Babubhai has also admitted that there was no dispute with the accused before the incident or at present. While changing version, the complainant and PW-15 Dipakbhai said that there was animosity and quarrel with the deceased and the accused which appears to be doubtful. PW-15 Dipakbhai Babubhai has also admitted that there was no dispute with the accused before the incident or at present. While changing version, the complainant and PW-15 Dipakbhai said that there was animosity and quarrel with the deceased and the accused which appears to be doubtful. There is no cogent evidence available with the prosecution that in fact whether any dispute was in existence between deceased-Vipul and the accused because PW-15 Dipakbhai himself has admitted that his brother being a Journalist, was receiving frequent threats and he was never informed of such threats by the deceased. 7.6 Evidence of Dog-handler ASI-Shri K.A Dayatar is not helpful to the prosecution. This witness came with a dog at the scene of offence and arranged sniffing of the smell by his dog, who went towards the residence of Firoz. The place of offence being a public road, it appears that no care was taken by the investigating agency to prevent visit of passers-by through the place of offence. As per testimony of Dog-handler ASI-Shri K.A Dhayatar, 9” foot print was given by Shri Ramchandra K. Kava, IO to him and based on smell sniffed, the dog went to the place where accused were found. The accused were hidden in a house of Firoz, after the incident. It appears that it was a residential house of father of the accused no. 1. This witness cannot be solely relied upon to connect the accused with the crime, in absence of any corroborative evidence. Panch witness of Arrest Panchanama Shri Amrubhai Ghusabhai at Exh.18 has not supported the prosecution case. It also appears from his evidence that no ‘Yadi’ was forwarded to doctor to collect blood sample of the deceased, and therefore, it creates a doubt that in fact blood sample of the deceased was forwarded to FSI for chemical analysis or otherwise. The clothes of the accused having blood stains were seized and a panchnama was prepared by prosecution. 7.7 PW-2 : Balabhai Pithabhai is examined at Exh. 15, but he denies of having seen the clothes of the accused. Recovery panchnama of three knives Exh. 31 prepared in presence of panchas viz., Balvantbhai Bhikhubhai [Exh.20] and Pravinbhai Bhimjibhai [Exh. 22] have not supported the prosecution theory. 7.7 PW-2 : Balabhai Pithabhai is examined at Exh. 15, but he denies of having seen the clothes of the accused. Recovery panchnama of three knives Exh. 31 prepared in presence of panchas viz., Balvantbhai Bhikhubhai [Exh.20] and Pravinbhai Bhimjibhai [Exh. 22] have not supported the prosecution theory. Only two material witnesses from the prosecution side viz., father of the deceased Shri Babubhai Vitthalbhai and brother of the deceased-Shri Dipakbhai Babubhai have tried to support the prosecution case, but their depositions are found to be contrary and inconsistent with each other. 8. From the entire evidence, if we consider the prosecution case, there appears to be no perversity, much less illegality, in the impugned judgment and order passed by the learned trial Judge acquitting the respondents herein. 9. Resultantly, this Appeal fails and the same is dismissed. Bail bonds stand cancelled. Appeal dismissed.