JUDGMENT : A.P. THAKER, J. 1. The appellant-original accused has preferred this appeal under Section 374 of the Criminal Procedure Code, 1973 against the judgment and order dated 31.12.2004 passed by learned Joint District Judge and Additional Sessions Judge, Fast Track Court No. 8, Bharuch in Sessions Case No. 20 of 2004, whereby the appellant-original accused no. 12 was convicted along with other two accused for the offence under Sections 143, 147, 427, 435, 436 of the Indian Penal Code. The appellant was sentenced to undergo simple imprisonment for one month for the offence under Section 143, simple imprisonment of three months for offence under Section 147, simple imprisonment of one month for offence under Section 427, simple imprisonment of one year for offence under Section 435 and fine of Rs. 2,000/- and in default of payment of fine further simple imprisonment of three months; simple imprisonment of two years for the offence under Section 436 and fine of Rs. 3,000/- and in default of payment of fine, further simple imprisonment of three months was imposed. All the sentences were ordered to run concurrently. 2. It is the case of the prosecution that in the background of the incident of Godhra carnage on 27.2.2002, the complainant and other witnesses had come to know that members of Hindu community were going to set ablaze and to pick up quarrel with them. That all the members of the Muslim community had left Muslim Faliya, Village-Mandva and on 3.3.2002, houses of complainant and other witnesses were set ablaze. That a mob of 40 to 50 persons had cornered Salimbhai Kadarbhai Mogal and present appellant shouted “kill him, he is a Muslim” and assaulted on his hand with an axe. Therefore, said Salimbhai had run away in the thrones and thereafter in the outskirts of the village and on the next day, he was admitted in a dispensary and was given medical treatment. 2.1 Therefore, a complaint being C.R. No. I-36/2002 was registered and at the conclusion of investigation, police filed charge sheet for the offences under Sections 143, 147, 324, 427, 435, 436 of IPC and Section 135 of the Bombay Police Act in the Court of 2nd Joint Judicial Magistrate, First Class, and the accused were given police papers. 2.1 Therefore, a complaint being C.R. No. I-36/2002 was registered and at the conclusion of investigation, police filed charge sheet for the offences under Sections 143, 147, 324, 427, 435, 436 of IPC and Section 135 of the Bombay Police Act in the Court of 2nd Joint Judicial Magistrate, First Class, and the accused were given police papers. Since the offence is triable exclusively by the Court of Sessions, the case was committed to the Court of Sessions, Bharuch and numbered as Sessions Case No. 20 of 2004. Thereafter, charge was framed against the accused and the accused pleaded not guilty to the charge and claimed to be tried. 2.2 During the course of trial, the prosecution has laid following oral as well as documentary evidence:- Oral Evidence: S. No. Name Exhibit 1. Maiyuddin Kadarbhai Mogal-Complainant 24 2. Shanaullah Ismail 26 3. Dhansukhbhai Girdharbhai Patel-Panch 27 4. Mangabhai Chandubhai Vasava-Panch 29 5. Dineshbhai Kalidas Vasava-Panch 30 6. Arvindbhai Manirbhai Vasava-Panch 32 7. Salimbhai Kadarbhai Mogal 33 8. Mohammadbhai Ibrahimbhai Gulamrasul 34 9. Habibbhai Rahemanbhai Mogal 35 10. Gulambhai Musabhai 36 11. Hamidbhai Jabbarbhai Mogal 37 12. Dilavar Ahemad Mogal 38 13. Hamidbhai Yakubbhai 39 14. Jaykantbhai Becharbhai Patel 40 15. Muradbhai Musabhai Mogal 41 16. Ayyubbhai Divanbhai Mogal 42 17. Dr. Nemisha Navinchandra Makwana 44 18. Valibhai Mohammadbhai Malek 46 19. Mahebubbhai Divanbhai Mogal 47 20. Yakubhai Divanbhai Mogal 48 21. Rahimuddin Alauddin Shaikh 49 22. Bashirbhai Rasulbhai Mogal 50 23. Akbarbhai Nannubhai 51 24. Mahebubbhai Rahemanbhai Mogal 52 25. Vikramsinh Vakhatsinh, I.O. 53 26. Rakeshkumar Babulal Modi 58 27. Ghanshyambhai Bhikhabhai Harijan-Police Witness 60 28. Rameshbhai Dalabhai Patel-Police Witness 64 Documentary Evidence: S. No. Name Exhibit 1. Complaint of the complainant. 25 2. Panchnama of the place of offence shown by the complainant. 28 3. Panchnama of physical condition of accused Rajubhai and Rupeshbhai. 31 4. Drop Purshis. 43 5. Report for addition of section in FIR. 54 6. Xerox copy of notification. 59 7. Panchnama of the place of offence shown by Shanaullah Ismail, which includes shop. 61 8. Order handing over investigation to Vikramsinh. 65 9. Xerox copy of station diary. 66 10. Vardhi from Bharuch Welfare Hospital. 67 11. Vardhi from Bharuch Welfare Hospital. 68 12. Original FIR. 54 6. Xerox copy of notification. 59 7. Panchnama of the place of offence shown by Shanaullah Ismail, which includes shop. 61 8. Order handing over investigation to Vikramsinh. 65 9. Xerox copy of station diary. 66 10. Vardhi from Bharuch Welfare Hospital. 67 11. Vardhi from Bharuch Welfare Hospital. 68 12. Original FIR. 70 2.3 Thereafter, further statement of the accused was also recorded under section 313 of the Criminal Procedure Code wherein he has denied the incriminating evidence led by the prosecution. After completion of trial, learned Judge convicted the accused for the offence, as aforesaid. Being aggrieved by and dissatisfied with the impugned judgment and order, present appeal is preferred by the appellant-accused. 3. Heard learned counsel for both sides and perused the material placed on record as well as the impugned judgment. 4. Mr. Darshan Dave, learned advocate for the appellant submitted that the explanation given by the complainant for late filing of the complaint is not natural and it ought not to have been believed by learned trial Judge. He has submitted that the injured has taken treatment at a private clinic and it is clear that he has received injury on his back and it is not on his left hand, therefore, the evidence of the injured cannot be believed to convict present appellant. He also submitted that on the fateful day there was no light in Muslim Faliya and therefore, the victim could not have identified the members of the mob. He also submitted that date of offence in FIR is overwritten, which creates doubt about its genuineness and correctness and no explanation is given for such over-writing. He submitted that there is no evidence connecting present appellant with crime. He has further submitted that there is no name of the accused in FIR and as per the FIR, there was a mob of about 200 to 500 persons. While referring to the impugned judgment, he has submitted that learned trial Court has properly acquitted present accused from the charges of offence under Section 324 of IPC but has committed a serious error of facts and law in convicting the accused for other offences. While assailing the impugned judgment, he has submitted that learned trial Court has not taken into consideration all these aspects and committed serious error of law and facts in convicting the accused. While assailing the impugned judgment, he has submitted that learned trial Court has not taken into consideration all these aspects and committed serious error of law and facts in convicting the accused. He has prayed to allow present appeal and to quash and set aside the impugned judgment. 5. Per contra, Ms. Jirga Jhaveri, learned APP appearing for the respondent-State has submitted that the trial Court has not committed any serious error in convicting the accused and imposing sentence on him. While referring to the evidence on record, she has also submitted that at the time of the incident, present appellant was present and it is specifically stated that he had attacked the victim and caused the injury upon him. She has submitted that as there is no perversity in the impugned judgment, the same is sustainable in the eyes of law and this Court may not interfere with the impugned judgment. 6. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 7. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. 8. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. 8. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 9. Considering the contentions raised by learned advocates appearing on both sides and considering the material placed on record and the impugned judgment, it is an admitted fact that initially there were 12 accused, out of which learned trial Judge has acquitted accused nos. 1 to 5, 7, 8, 10 and 11 and has convicted accused nos. 6, 9 and 12. Out of these three convicted accused, only accused no. 12 has preferred present appeal. 10. On perusal of the evidence on record, it is revealed that the complainant, PW-1 Maiyuddin Kadarbhai Mogal, Exh.24 has stated in his evidence that the incident had happened on 2.3.2002 in the night at about 8 O' clock and, at that time, 13 to 14 houses were set ablaze and initially three persons came there and thereafter, there was a mob of 100 to 150 persons. While narrating names of house holders, whose houses were set on fire, the witness has stated that he has filed complaint at Exh.25 and he himself has shown the place of occurrence to police. He has stated that he knows only Khushalbhai Chimanbhai Patel and Mahesbhai Shankarbhai and does not know other accused persons and he cannot identify them. Thus, in his chief examination, he has clearly attributed the role to Khushalbhai, whereas no role is attributed to present appellant. Of course, during his cross-examination he has admitted that his son has taken away a girl of Vasava community, who was wife of one Ranjit. He has admitted that due to that incident, the elder persons of the village had scolded him. Of course, during his cross-examination he has admitted that his son has taken away a girl of Vasava community, who was wife of one Ranjit. He has admitted that due to that incident, the elder persons of the village had scolded him. However, he denied the suggestion that due to that incident he has falsely implicated the accused in the present offence. He has further admitted that there are two groups of political parties in the village and there are grievances between both the parties. 11. Thus, from his evidence it is clear that he has not identified present accused and has specifically stated that he has given the name of Khushalbhai and Mahesbhai only. 12. PW-2 Shanaullah Ismail, Exh.26 has also stated that on the date of happening of the incident, a mob of 200 to 250 persons had come in the late night at about 11 to 11.30 p.m. He has stated that there was rioting and they left the village. He also stated that he cannot identify any person from the mob. During his cross-examination, he has admitted that at the time of incident, it was late night and there was no light. 13. PW-3, Dhansukhbhai Girdharbhai Patel, Exh.27 and PW-4, Mangabhai Chandubhai Vasava, Exh.29, who are the panch witnesses have not supported the basic version of prosecution regarding drawing of panchnama in their presence. 14. It is also revealed from the evidence of PW-5 and PW-6, panch witness of the panchnama of condition of body of the accused and recovery of weapons from the accused, Exh.31, that they have not supported the basic version of the prosecution that the accused were arrested and weapons were recovered from them. 15. PW-7 Salimbhai Kadarbhai Mogal, Exh.33, has categorically stated in his evidence that on 2.3.2002 at about 8 to 8.30, the incident had happened and at that time, he was going towards mosque and when he reached his field, at that time, Mr. Rajubhai Vasava, present accused met him and told him that “you may come with me, nobody will beat you” and when they were going towards village, mob of 40 to 50 persons surrounded them. Rajubhai Vasava, present accused met him and told him that “you may come with me, nobody will beat you” and when they were going towards village, mob of 40 to 50 persons surrounded them. At that time, he was on splendor and he pleaded before them not to beat him and, at that time, the accused, Rajubhai has told that “kill him as he is a Muslim” and, thereafter, blow of axe was given on his left hand by the accused. Thereafter, he left the place and came up early morning at 9 O” clock in the village. He has also stated that thereafter he was brought to village-Mandva and he found that many houses were set ablaze by the mob and there was huge loss to the property. He has narrated the names of persons, whose houses were set on fire by the mob. While identifying the accused in the Court, he has stated that muddamal axe is not the same by which he was given the blow. 16. During his cross-examination, he has admitted that in past one Jagdishbhai Chimanbhai Patel was residing in the village and he was murdered. In that case, his uncle-Gulambhai Rasulbhai as well as his cousin Gulambhai Rasulbhai Mogal were arrested by the police and they all have been serving the sentence in Baroda Jail. He has admitted the facts that he is doing the business of mutton after slaughtering the sheep, however, he do not have permission for that. He has also stated that his sister is also involved in the business of chicken and his sister has put up construction over the land of the gram panchayat, which is illegal. He has also stated that at the time of incident, there was complete darkness. He has admitted that Yusuf, who is son of Maiyuddin has taken away wife of one Ranjitbhai and due to that elders of the village scolded Maiyuddin. He has also stated that he has given complaint before the police and his statement was also recorded. He has admitted that the facts, which he has narrated in his chief-examination regarding he was going towards the field and the accused asked him to accompany him, were not narrated by him before the police. He has also stated that he has given complaint before the police and his statement was also recorded. He has admitted that the facts, which he has narrated in his chief-examination regarding he was going towards the field and the accused asked him to accompany him, were not narrated by him before the police. He has also denied that he has not stated to the police that present accused Raju has told that “Kill him as he is a muslim.” Thus, on perusal of his cross-examination, it appears that he has made improvements in his chief-examination regarding the material facts, which are not narrated before police. 17. In his evidence of Mohammadbhai Ibrahimbhai Gulamrasul, PW-8, Exh.34, while narrating the facts of incident, has stated that there was mob and he cannot identify anybody and he has also admitted that there was darkness at that time. Habibbhai Rahemanbhai Mogal, PW-9, Exh.35 has also stated the same facts. On perusal of evidence of Gulambhai Musabhai, PW-10, Exh.36, it reveals that he got the information of destruction of property on the next day, and he does not know, who has put his house on fire. Hamidbhai Jabbarbhai Mogal, PW-11, Exh.37, has also stated that when he came back, he found that his tempo was put on fire but he did no know as to who did the said act of putting his tempo on fire. He has also admitted the facts regarding murder of Jagdish and the conviction of Kadarbhai, Gulambhai and Faridbhai. He is also brother of Raziyaben. He has also admitted that he does not have any personal knowledge regarding the incident. 18. Dilavar Ahemad Mogal, PW-12, Exh.38, has also stated that there was loss of Rs. 45,000/- in his shop and he does not know as to who has done his act and who has robbed his shop. Similarly, Hamidbhai Yakubbhai, PW-13, Exh.39, has stated that in the incident his house was set on fire and he has sustained loss of Rs. 50,000/- to Rs. 60,000/- but he has no knowledge as to who has put his house on fire. 19. Jaykatbhai Becharbhai Patel, PW-14, Exh.40 has also stated that at the time of incident, he was in his own house and tyre of his truck was put on fire and he sustained loss of Rs. 10,000/-. He did not know, who has put the tyre on fire. 19. Jaykatbhai Becharbhai Patel, PW-14, Exh.40 has also stated that at the time of incident, he was in his own house and tyre of his truck was put on fire and he sustained loss of Rs. 10,000/-. He did not know, who has put the tyre on fire. He has admitted that he has no personal knowledge regarding the incident. 20. Murad Musabhai Mogal, PW-15, Exh.41 has also deposed that on the date of incident, he was not in the village and was at his sister's house at Village-Sengpur and he came back on the next day and found that his house was burnt in fire. He has also stated that he does not know as to who has put his house on fire. He did not know even how the incident has happened. Ayubbhai Diwanbhai Mogal, PW-16, Exh.42, has also stated similar facts. 21. Dr. Nemisha Navinchandra Makwana, PW-17, Exh.44 has stated that at the relevant time she was medical officer in Bharuch Civil Hospital and Salim Kadar was brought to the hospital without any police yadi and he was examined by Dr. Jamir Faruqi. She has also stated that as per the instructions of Dr. Jamir Faruqi, she has informed the police and thereafter, treatment was given to the patient, who had sustained injury on the left hand and on the back side. According to her version, the history was given that injury was caused due to axe but she has also stated that initially treatment was taken by the patient from any private medical hospital and, thereafter, he was taken to Civil Hospital and on 9.3.2002, he was discharged. In the history narrated, it is stated that he was attacked by axe on 3.3.2002 at 9.30 p.m. at Mandva, however, no name of the assailant has been given at the time of history by the patient. 22. Valibhai Mahammadbhai Malek, PW-18, Exh.46, in his evidence has stated that he was residing in Muslim Faliya and on 2.3.2002, there was fire in the Faliya at mid-night and the Collector as well as the DSP came there and in such fire, no damage was caused to his house and he did not know how the fire has started. He admitted that he has not given any complaint at night, though Collector and DSP were present. 23. He admitted that he has not given any complaint at night, though Collector and DSP were present. 23. PW-19, Mahebubbhai Diwanbhai Mogal, Exh.47, PW-20 Yakubbhai Diwanbhai Mogal, Exh.48 and PW-21 Rahimuddin Alauddin Shaikh, Exh.49, all have stated somewhat similar facts that there was a mob of around 200 persons and the mob has damaged their houses, however, they do not know any member of the mob. 24. PW-22 Basirbhai Rasulbhai Mogal, Exh.50, PW-23 Akbarbhai Nannubhai, Exh.51, PW-24 and Mahebubbhai Rahemanbhai Mogal, Exh.52, have stated somewhat similar facts. It is stated by the witness Basirbhai Rasulbhai Mogal that he was in his agricultural field when the incident had happened and his wife and children had also come to the field. He has stated that when they went to Muslim Faliya next day, his house was burned and about 17 houses adjacent to his house were also burned. 25. PW-24 Vikramsinh Vakhatsinh, Exh.53, who is investigating officer has stated in his evidence that similar statements are made before him by the witnesses, wherein it is stated that there was a mob and they do not know as to who has damaged their property or set the houses on fire. He has also stated that from the place of incident, no tin of kerosene or the match-sticks were recovered by him. He has also stated that on the day of incident, Collector and DSP had also come at the spot. 26. PW-28 Rameshbhai Dalabhai Patel, Exh.64 has stated in his evidence that he was serving as Police Inspector at Ankleshwar Police Station and the complaint of the incident was given to him by the complainant, however, the investigation was handed over to Vikramsinh Vakhatsinh. He has stated that names of the accused were not given at the time of giving complaint. 27. As the present appeal is preferred only by accused no. 12, this Court has considered the evidence on record only in respect of present appellant-accused no. 12. From the evidence on record, it is clear that at the time of lodging of complaint, names of accused were not given, therefore, there is no question of mentioning the name of present appellant. It is found by the learned trial Judge that witness Salimbhai has identified accused no. 12 and stated that he had attacked with axe. 28. 12. From the evidence on record, it is clear that at the time of lodging of complaint, names of accused were not given, therefore, there is no question of mentioning the name of present appellant. It is found by the learned trial Judge that witness Salimbhai has identified accused no. 12 and stated that he had attacked with axe. 28. Even as per the medical evidence, in the history before doctor, it was stated by the injured that injury was caused due to axe but he has not given name of the person who has assaulted him, at the first available opportunity. It is also clear that initially treatment was taken by the patient from private medical hospital and, thereafter, he was brought to Civil Hospital and he was discharged within three days. In the history narrated before doctor, no name of the assailant has been given by the victim. 29. Salimbhai Kadarbhai Mogal, the victim has admitted during his cross-examination that in past one Jagdishbhai Chimanbhai Patel was murdered and in that case, his uncle- Gulambhai Rasulbhai as well as his cousin Gulambhai Rasulbhai Mogal were arrested by the police and they all have been serving the sentence in Baroda Jail. Therefore, past enmity was also there between the parties. Not only that in the evidence of most of the prosecution witnesses it has come on record that the incident had happened at night and there was darkness. Not only that most of the witnesses have also stated that they could not say as to who has committed the offence and they were unable to identify anyone. Considering the totality of the evidence, it can be said that the prosecution has failed to prove its case beyond reasonable doubt against present appellant and the impugned order deserve to be quashed and set aside. 30. For the foregoing reasons, present appeal is allowed. The impugned judgment and order dated 31.12.2004 passed by learned Joint District Judge and Additional Sessions Judge, Fast Track Court No. 8, Bharuch in Sessions Case No. 20 of 2004, convicting the appellant-original accused no. 12 for the offence under Sections 143, 147, 427, 435, 436 of the Indian Penal Code is quashed and set aside so far as present appellant is concerned. The appellant-accused is acquitted of all the charges levelled against him. Fine, if paid, be refunded to him. 12 for the offence under Sections 143, 147, 427, 435, 436 of the Indian Penal Code is quashed and set aside so far as present appellant is concerned. The appellant-accused is acquitted of all the charges levelled against him. Fine, if paid, be refunded to him. Since the appellant-accused is on bail, bail bond stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.