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Gujarat High Court · body

2023 DIGILAW 603 (GUJ)

State Of Gujarat v. Ansar Ahmed Gulammohmad Mir

2023-04-13

M.K.THAKKER, UMESH A.TRIVEDI

body2023
JUDGMENT : M. K. THAKKER, J. 1. The appellant – State of Gujarat has preferred this appeal under Section 378 of Code of Criminal Procedure, 1973, against the judgment and order of acquittal dated 10.10.2001 passed by learned Additional Sessions Judge, Court No.4, Ahmedabad city in Sessions Case No.360 of 2000 thereby, the respondent-accused was acquitted from the charges under Section 20(b)(ii) read with Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). 2. It is the case of the prosecution that on 19.04.2000 at about 11.30 a.m., one unarmed Head Constable, namely, Sabursinh attached with Panchkuva Police Chowki, Kalupur Police Station, Ahmedabad city, who was on the patrolling duty along with his two police officers, namely, (1) Ashokkumar Amratlal, Police Constable and (2) Ashokkumar Ganpatbhai, Police Constable had intercepted one auto rickshaw. On making inquiry from the passenger, who was sitting in the rickshaw that from where he was going, it was replied by the passenger that he was Military Man and he shown his identity card. On further inquiry as to what he was carrying in his bag. He replied that there is no any offending article in the bag. On further suspicion and on making further inquiry, whether any liquor is lying in the bag, he informed that he had one bottle in his bag. On creation of doubt about the crime, he was brought to the nearest police chowki i.e. Sarangpur Police Chowki along with the rickshaw. On reaching to the Sarangpur Police Chowki, the accused proceeded towards the chowki and while after disembarking from rickshaw, the police proceeded towards the chowki. Suspect after taking bags instead of following police chowki, threw away his bag outside the police chowki and ran away from the spot. 3. The police constable had tried to catch the suspect, however, the efforts remained in vain. They tried to make extensive search from the nearby vicinity and also make inquiry from the driver of the auto rickshaw regarding at which place, he was to take this rickshaw. However, on completion of that duty hours, they came back to the chowki and had opened the bag in presence of panch-witnesses. They tried to make extensive search from the nearby vicinity and also make inquiry from the driver of the auto rickshaw regarding at which place, he was to take this rickshaw. However, on completion of that duty hours, they came back to the chowki and had opened the bag in presence of panch-witnesses. There were 5 articles found from the bag and on opening one article, the narcotic substance, namely, charas was found, therefore, they had informed their higher officer, namely, Amrutbhai Desai, Police Inspector with regard to the crime. On arrival of Police Inspector, another panchnama was drawn in the presence of the panch-witnesses and ultimately, it was found that there was 21 kg. Charas lying in the bag. Therefore, First Information Report came to be registered being I-C.R.No.5022 of 2000 before the Kalupur Police Station on 19th April, 2000 at around 23.30 hours for the offence punishable under Sections 20(b)(ii) read with Section 22 of the ‘NDPS Act’. That accused came to be arrested on 25th July, 2000 by the Police Inspector, Amrutbhai Lallubhai Desai and was remanded to the judicial custody. That on conclusion of the investigation, charge-sheet came to be submitted before the Competent Court on 24th October, 2000 and same was numbered as Criminal Case No.43 of 2000 for commission of offence under Sections 20(b)(ii) read with Section 22 of the ‘NDPS Act’. As the offence is triable by the learned Court of Sessions, same was committed to the Sessions Court, Ahmedabad city where it was numbered as Sessions Case No.360 of 2000 for the purpose of trial. 4. Learned Judge had framed the charge against the respondent at Exh.1 for the offence punishable under Sections 20(b)(ii) read with Section 22 of the ‘NDPS Act’. The charge was read over and explained to the respondent who pleaded not guilty to the same and claimed to be tried. 5. In order to bring home the guilt of the accused, prosecution examined 9 witnesses and produced certain documents evidence list such as Panchnama of Test Identification Parade, Muddamal receipts, Report of FSL, Panchnama regarding arrest of the accused, opinion from the FSL officer, the Report of the Psychology Department, etc. 6. 5. In order to bring home the guilt of the accused, prosecution examined 9 witnesses and produced certain documents evidence list such as Panchnama of Test Identification Parade, Muddamal receipts, Report of FSL, Panchnama regarding arrest of the accused, opinion from the FSL officer, the Report of the Psychology Department, etc. 6. Learned Public Prosecutor had examined before the trial Court, PW-1, namely, Sureshchandra Vasudev Dixit, who was Executive Magistrate and conducted Test Identification Parade on 6th August, 2000 before whom the two witnesses, namely, Pramod and Jaymin had identified the accused before him. The Panchnama of Test Identification Parade was exhibited at Exh.10. The prosecution had further examined the witness, PW-2, namely, Natvarsinh Samatsinh, PSO, serving at Kalupur Police Station and through this witness, the prosecution had produced the Muddamal receipt at Exh.12. The prosecution had further examined the witness being Shartanji Vajaji Darbar as PW-3, who was also Executive Magistrate and conducted Test Identification Parade on two occasions i.e. 22nd July, 2000 and 25th July, 2000 wherein, the complainant and police constable as well as Nasirbhai Usmanbhai, rickshaw driver, identified the respondent-accused. All the three (3) panchnamas were exhibited through the evidence of this witness and same was marked as Exh.18,19 and 20 respectively. The prosecution further examined one Nurruddin Amrudin - PW-4 who carried the samples to the FSL and through this witness, the receipt was exhibited at Exh.22. The prosecution had further examined the complainant, Subbursinh Solanki - PW-5 and through this witness, the First Information Report came to be exhibited at Exh.25. The prosecution had further examined the witness, namely, Ashokkumar Ganpatrav, who also accompanied the complainant and serving as Police Constable at Kalupur Police Station. The prosecution had further examined PW-7, namely, Jaiminbhai Odhavjibhai Thakkar, owner of the Sunrise Hotel. The prosecution further examined PW-8, namely, Shankerbhai Nagjibhai, who was Crime Writer Head at Kalupur Police Station, who had taken the charge of muddamal. The prosecution had further examined the Police Inspector, Investigating Officer, namely, Amrtubhai Lallubhai Desai at PW-9, who conducted the investigation and filed the charge-sheet before the competent Court. On filing the closing pursis at Exh.45, on 10.10.2001, the learned Judge has explained the circumstances and incriminating material put by the prosecution against the respondent-accused and recorded his further statement under Section 313 of the Code of Criminal Procedure, 1973. In further statement, the respondent-accused denied the charges levelled against him. On filing the closing pursis at Exh.45, on 10.10.2001, the learned Judge has explained the circumstances and incriminating material put by the prosecution against the respondent-accused and recorded his further statement under Section 313 of the Code of Criminal Procedure, 1973. In further statement, the respondent-accused denied the charges levelled against him. 7. Thereafter, learned advocate of the parties were heard by the learned Additional Sessions Court, Ahmedabad city and elaborately dealt with documentary evidence as well as oral evidence in the form of depositions and after discussing the same with reasoning, has come to the conclusion that prosecution has failed in establishing the evidence against the respondent-accused beyond reasonable doubt. The learned trial Judge has, after appreciating the evidence on record, observed that prosecution failed to produce the evidence which inspires the confidence against the respondent-accused. According to the learned Judge, no reliable evidence was produced to prove the charge against the respondent-accused for the offence punishable under Section 20(b)(ii) read with Section 22 of the ‘NDPS Act’ and therefore, respondent was entitled to be acquitted of the charge levelled against him. In view of the above referred conclusion, learned Judge has acquitted the respondent from the offence punishable under Sections 20(b)(ii) read with Section 22 of ‘the NDPS Act’, giving rise to above numbered appeal. 8. Heard learned advocates for the parties. 9. Learned APP, Ms.Jhaveri, has mainly relied upon oral evidence and assailed the judgment of learned Additional Sessions Judge, Ahmedabad city in Sessions Case No.360 of 2000. According to Ms.Jhaveri, there was ample evidence, namely, evidence of PW-5 and PW-6 who deposed before the learned Court supporting the case of the prosecution and they had identified the accused before the Executive Magistrate in Test Identification Parade. According to Ms.Jhaveri, the prosecution had further established the case by examining the owner of the Hotel, namely, Jaiminbhai where the accused has to reach. According to Ms.Jhaveri, report of FSL further confirms with regard to the substance lying in the bag, namely, Charas weighing around 21 kgs. Ms. Jhaveri, learned APP further relied on the opinion of the Lie Detection Test conducted by the FSL to show that there were indication that accused found to be telling lies. Ms.Jhaveri, further relied upon the FSL Report below Exh.34 where clothes sent (including seized from bag) to FSL are found to contain perspiration – sweat of same person having ‘B’ group. Ms.Jhaveri, further relied upon the FSL Report below Exh.34 where clothes sent (including seized from bag) to FSL are found to contain perspiration – sweat of same person having ‘B’ group. Ms.Jhaveri, heavily relied upon Test Identification Parade where respondent-accused were identified by the witness, namely, Jaimin, the hotel owner, Subursinh and Ashokkumar both were the police officers. Ms.Jhaveri, learned APP further submitted that there was no any grudge, which was alleged during the trial against the police officers. Therefore, there was no reason to falsely implicate the respondent-accused for the purpose. It was further submitted by Ms.Jhaveri that accused were arrested through transfer warrant and that also one of the ground confirming the involvement of the accused in the offence. 10. Learned APP had submitted that there were no any material discrepancies found during the cross-examination on oath. The prosecution had proved the case beyond the reasonable doubt. The learned Judge had committed error in acquitting the respondent-accused for the charges levelled against him. Learned APP further submitted that evidence on record has not been appreciated in its true and correct perspective by the learned trial Judge and therefore, the present appeal should be allowed. 11. On the other hand, learned advocate, Mr.K.J.Panchal, appearing for the respondent-accused had strongly supported the findings of the learned trial Judge on the ground that the prosecution had not produced any evidence, which inspired confidence, presumption of the innocence in favour of the accused, which is further strengthen by the order of the acquittal. According to Mr.Panchal, after appreciating the entire evidence oral as well as documentary, on record, learned Judge has rightly come to the conclusion that there is no direct evidence, which supported the case of the prosecution and therefore, learned trial Court has rightly acquitted the respondent-accused from the charges levelled against him. 12. Mr.Panchal, further submitted that as is known to the Hon’ble Court that primary it is first and foremost as well as preliminary duty on the prosecution to bring home the guilt of the accused beyond shadow of doubt. It is also at the same time duty of the prosecution to prove involvement and complicity of accused in the alleged offences beyond reasonable doubt. Mr.Panchal further submitted that as per settled law, prosecution has to stand on its own legs and it cannot derive any benefit from the weakness of the defence. It is also at the same time duty of the prosecution to prove involvement and complicity of accused in the alleged offences beyond reasonable doubt. Mr.Panchal further submitted that as per settled law, prosecution has to stand on its own legs and it cannot derive any benefit from the weakness of the defence. It is submitted that prosecution has miserably failed to link the accused with socalled seizure of Narcotics-contraband articles. Prosecution in present case has not been successful to establish involvement of the accused in the crime beyond reasonable doubt. 13. Mr.Panchal, learned advocate for Respondent-accused further submitted that evidence of Prosecution Witnesses must be of sterling quality, so as to inspire confidence. Prosecution witnesses must be reliable, trustworthy and dependable so that by placing blind reliance on them, a person can be convicted. Here prosecution witnesses are not reliable, trustworthy and dependable. 14. It is submitted by Mr.Panchal, learned advocate for the respondent-accused that PW No. 5 & PW No. 6 have deposed to in their evidence that after the suspect was apprehended, he was taken to Police Chawky in auto-rickshaw. They have stated that while both of these witnesses were taking entry, they left behind a suspect, shows total callous approach on their part without even bothering that they had brought a suspect to police chawky who had divulged before them that he was carrying liquor bottle, allowing him to make his escape good. Not only that suspect fled but also threw his belongings at Chawky. As admitted by PW No. 6 in para-3 of his cross-examination that factum of suspect having fled was not informed by these 2 police witnesses either to their Police Station or to Police Control room immediately. 15. It is submitted by Mr.Panchal that their highly unnatural conduct in leaving Police Chawky immediately by leaving behind bags in unattended condition, without handing over to their higher officer, colleague or subordinate officer raises serious doubts. They did not even called-in more help from Police Station. There is nothing on record to show that whether any other Policeman was present at Chawky. 16. It is further submitted by Mr.Panchal that these 2 police witnesses returned at Chawky after making search of that suspect around 3:00 noon, thereafter by calling 2 panch witnesses they drew Panchnama Exh. 27, whereby they came to know that the bags contained Narcotics. 16. It is further submitted by Mr.Panchal that these 2 police witnesses returned at Chawky after making search of that suspect around 3:00 noon, thereafter by calling 2 panch witnesses they drew Panchnama Exh. 27, whereby they came to know that the bags contained Narcotics. Even thereafter also these witnesses did not follow the provisions under ‘the NDPS Act’, which are directory in nature. 17. It is further submitted that even after drawing Exh. 27 Panchnama, these 2 police witnesses chose to call PI, who after reaching started drawing another panchnama at 20:40 hrs- Exh. 28. During this time also the Charas- Narcotic substance was not sealed by these 2 police officers as has been admitted by PW No. 5 in his cross in last line of para-6. 18. It is submitted by Mr.Panchal that PW No. 5 & PW No. 6 in their complaint/FIR, police statements or in different Panchnamas have not given description about the suspect. About the physic, clothes worn by suspect, visible signs of suspect etc., are not described anywhere. 19. It is submitted that though 2 police witnesses claim and depose to have seen ID card of the suspect on 19.04.2000, that ID card was not even subsequently seized by police from custody of accused after his arrest. Nothing connecting the accused is found by police from the bags which were allegedly thrown and left by suspect at Police Chawky. Neither of panch witnesses to panchnama Exh. 27 & Exh. 28 as regards opening bags and seizure of articles, are examined. 20. It is submitted that prosecution is placing heavy reliance on 3 TI parade panchnama to fix identity of accused. In that TI parade accused was shown to be identified at hands of PW No. 5 and PW No. 6. It is humbly submitted that considering evidence of Executive Magistrate who is examined as PW No.3, given the fact that accused was already lodged at Central Jail, and the fact that PW No. 5 & PW No. 6 were Police witnesses, TI Parade could have been conducted in Jail. As has been admitted by PW No. 3, accused were not produced before him by covering their face. Manner in which TI Parade is held sounds highly doubtful. As has been admitted by PW No. 3, accused were not produced before him by covering their face. Manner in which TI Parade is held sounds highly doubtful. It is also highly doubtful as to how IO –PI –PW No.9 came to know about of 4 persons by NCB and why all of sudden he decided to hold TI Parade. 21. As regards the 2nd TI Parade held by PW No. 3 by which witness- auto rickshaw driver namely Nasirbhai Usmanbhai identified accused on 25.07.2000, said rickshaw driver Nasirbhai is not examined by prosecution. As main crucial witness having not been examined, TI parade at his hands would not assume any importance. 22. Third TI Parade is held on 06.08.2000 by Executive Magistrate PW No. 1 whereby 2 witnesses namely Pramodbhai Natwarbhai and Jayminbhai Thakkar are said to have identified the accused. Again, witness Pramobhai is not examined. Whereas Jayminbhai Thakkar is examined as PW No. 7- Sunrise Hotel owner. Mere close look at the evidence of PW No. 7(who is an independent witness) shows that the prosecution story as per his chief is that the accused had stayed at his Hotel. Whereas in his cross he admits that the accused had come in capacity of visitor to his Hotel to see other persons who had stayed at Hotel. Further, nothing is spoken by this witness as regards the day, date and time of either purported stay or purported visit by accused. This witness completely pleads ignorance about mentioning of name of accused in his Hotel register. 23. Mr.Panchal, further submitted that FSL report –Exh. 34 is pressed into service by prosecution to show that all clothes sent (including seized from bag) to FSL are found to contain perspiration-sweat of same person having ‘B’ group. FSL examined clothes which police found from the bags left by suspect with the clothes recovered vide Panchnama Exh. 32 drawn on 07.08.2000. 24. It is humbly submitted that FSL evidence is in realm of opinion evidence. It is not conclusive evidence by placing reliance on which a person can be convicted simpliciter. 25. It is submitted by Mr.Panchal that though prosecution is placing implicit reliance on it, the same being developing science, is full of errors and omissions. It is again a report which can at best be relied on as opinion evidence. It can be used to corroborate other proved circumstances. 25. It is submitted by Mr.Panchal that though prosecution is placing implicit reliance on it, the same being developing science, is full of errors and omissions. It is again a report which can at best be relied on as opinion evidence. It can be used to corroborate other proved circumstances. Here, in present case, when main circumstance and aspect connecting accused with crime having not been established, lie-detection opinion would seldom carry any value. Other independent material fails on all counts to prove complicity of accused with crime. 26. It is submitted by Mr.Panchal that as per evidence of PW No. 5, he was on patrolling duty alongwith 2 constables at Sarangpur Circle where they intercepted auto-rickshaw. The name of another constable as stated by PW No. 5 is Ashokkumar Amratlal. Though he was with PW No.5 & PW No.6, for reasons best known to prosecution, he is not examined. 27. It is submitted by Mr.Panchal that Incident is stated to have occurred in broad day light in walled city area which is thriving with many activities. It is a busy locality. Even then also no independent witnesses are shown by prosecution to substantiate its story like- stopping rickshaw, interacting with its passenger, taking suspect and rickshaw to police Chawky, throwing away bags at entrance of Police Chawky by accused, running away of accused etc. The chain and sequence of events as projected by prosecution appears illusory in absence of independent witnesses. 28. It is submitted by Mr.Panchal that the view arrived at by the Trial Court and reasoning assigned by the Learned Judge cannot be said to be perverse, not in conformity with evidence on record, palpably wrong and demonstrably unsustainable. It being only possible view, the Judgement and order of acquittal as recorded by Learned Judge may kindly be confirmed. 29. It is submitted by Mr.Panchal that the view arrived at by the Trial Court and reasoning assigned by the Learned Judge cannot be said to be perverse, not in conformity with evidence on record, palpably wrong and demonstrably unsustainable. It being only possible view, the Judgement and order of acquittal as recorded by Learned Judge may kindly be confirmed. 29. Learned advocate, Mr.K.J.Panchal, appearing for the respondent-accused has also relied upon the judgment of Hon’ble Apex Court in the case of Sanjeev and Another V/s. State of Himachal Pradesh reported in 2022 (6) SCC 294 and in the case of Mohinder Kumar V/s. State, Panaji, Goa, reported in 1998 (8) SCC 655 and urged that when two views are possible, the view, which is in favour of the accused, is normally to be given approval by the higher Court and the acquittal of the trial Court, unless the same is found to be perverse, may not be reversed by the Court in appeal. 30. This Court has taken the complete and comprehensive appreciation of all vital views of the case and entire evidence on record with reference to broad and reasonable opportunities of the case. From the record of the case, it is evident that PW-5, namely, Sabursinh, who was the Head Constable and PW-6, Ashokkumar who is police constable both serving in the Kalupur Police Station were on the patrolling duty on the day i.e. 19.4.2000 at around 11.30 a.m. These police constables while on duty intercepted one auto rickshaw and on making the inquiry from the passenger, who was sitting in the rickshaw, with regard to from where he was coming, passenger replied that he is a military man and also shown his identity card. Further inquiry was made with regard to any offensive article carried in bag, which was possessed by the passenger, the passenger replied in negative. On further inquiry as to whether any liquor he is possessing or not, the passenger replied that he had one bottle with him. On suspecting about crime, PW-5 brought to the nearest police chowky in the auto rickshaw and police constable, Ashok Ganpatrav, was instructed to accompany with passenger in auto rickshaw and this witness, Sabursinh had informed that he would go by walking. On suspecting about crime, PW-5 brought to the nearest police chowky in the auto rickshaw and police constable, Ashok Ganpatrav, was instructed to accompany with passenger in auto rickshaw and this witness, Sabursinh had informed that he would go by walking. When rickshaw reached to the Sarangpur Police Chowky, PW-5 & PW-6 taking entry from the rickshaw left behind suspect instructing to come along with his bag in the police chowky. Instead of following the instructions, passenger threw away his bag at the police chowky and flee away from the place. This occurrence took place at 11.30 a.m. Thereafter, keeping the bag along with article in abandoned condition at the police chowky, they had tried to chase and make extensive search of the suspect nearby vicinity. They also made inquiry with auto rickshaw driver regarding where passenger was to drop. On revelation of driver, passenger had to go Hotel Sunrise. PW-5 and PW-6 also went there but all efforts went in vain. Around 3.00 p.m. when their duty was to over, they came back to the police chowky and in presence of two panch– witnesses, the bag was opened. There were 5 articles found in bag. On opening first article, it was found that contraband substance, namely, Charas lying in the bag. Thereafter, Police Inspector , who is PW-9, Amrutbhai Desai, was also informed and again panchnama was drawn in presence of panch-witness, which started at 20.14 hours and completed at 23.00 hours charas was weighed and found to have 21 kgs. The Panchnama was exhibited at Exh.28. The Police Officer in very casual manner instructed the passenger to follow towards the police chowky. Instead of escorting to the passenger who was having offensive article as it was informed by the passenger, they left him in the rickshaw with instructions to follow them. Even thereafter also, FIR was registered at 23.30 hours i.e. in the night though they had spotted the accused in the morning i.e. 11.30. Even prior to registration of FIR, twice panchnama was drawn first by the Police Constable and second by the Police Inspector. That on finding the contraband article i.e. Charas, that was bounden duty of the police officer to inform with regard to the substance to the higher officer as per the provisions of ‘the NDPS Act’. Even prior to registration of FIR, twice panchnama was drawn first by the Police Constable and second by the Police Inspector. That on finding the contraband article i.e. Charas, that was bounden duty of the police officer to inform with regard to the substance to the higher officer as per the provisions of ‘the NDPS Act’. They did not bother to inform to the police officer nor follow the procedure prescribed under ‘the NDPS Act’. This transpired the lethargic approach of the police constable not only to chase the accused persons but in fact for following the procedure under the Act. It is admitted in the cross-examination that the passenger had informed that he is military man and identity card was also shown to him. Neither this identity card was part of muddamal nor his name was disclosed at the relevant point of time. This creates doubt on the story of the prosecution with regard to the accusation of the respondent-accused. The prosecution also fails to prove the fact that where the accused had to go. At first instance, the prosecution has tried to prove that passenger has to go at Sunrise Hotel. Second instance story of staying in Hotel was tried to be put and thereafter through witness Jayminbhai prosecution came with the case that he went to meet guest stayed in the Hotel. In any case, no register was seized by the prosecution of Hotel. 31. The another important witness is auto-rickshaw driver. From record it appears that on 27.06.2001, for issuing witnesses’ summons record was sent to criminal department by Hon’ble Trial Court. Examination of all witnesses including IO got over by 03.10.2001. Thus for sufficient good period of time, witness- auto rickshaw driver though served with witness’s summons neither appeared nor brought before Court. For reasons best known to prosecution he is withheld. From records of case- Rojnama it transpires that on 10.10.2001 prosecution moved an application-Exh. 44 for adjourning the case for absence of rickshaw driver, though served with summons. Said application came to be rejected. Immediately prosecution gave closing pursis –Exh. 45 declaring that it no longer proposes to examine any witness. Order passed below Exh. 44 thus attained finality and it was not carried further by challenging the same. Even in closing pursis no reasons are stated as to why prosecution did not want to examine further witnesses. Said application came to be rejected. Immediately prosecution gave closing pursis –Exh. 45 declaring that it no longer proposes to examine any witness. Order passed below Exh. 44 thus attained finality and it was not carried further by challenging the same. Even in closing pursis no reasons are stated as to why prosecution did not want to examine further witnesses. It is on the contrary observed by the learned Judge in para-12 of Judgement that in the departmental proceedings which were conducted against PW No.5 & PW No.6, statement-deposition of rickshaw driver came to be recorded but somehow he has not turned up at trial. 32. The prosecution had also relied upon the Test Identification Parade to fix the identity of the accused. To prove the case through T.I. Parade, the prosecution has examined the Executive Magistrate, PW-1, Sureshchandra Dixit and Sartanji Valaji Darbar, Executive Magistrate, PW-3. Through these witnesses, the prosecution had attempted to prove the identity of the accused person. T.I. Parade was held thrice by two Executive Magistrates. First T.I. Parade was held on 22nd July, 2000 where two witnesses were called to identity the accused, namely, Sabursinh and Ashokkumar, both have identified the accused in T.I. Parade. The second T.I. Parade was conducted on 25th July, 2000 where witness, Nasirkhan, who is rickshaw driver had identified the respondent-accused in the T.I. Parade. This Nasirkhan was not examined by the prosecution, who was the independent witness. Thereafter again on 6.8.2000, T.I. Parade was held where one Pramodbhai Natvarbhai who was the Manager of Sunrise Hotel and other witness, namely, Jayminbhai Thakkar, who was owner of Sunrise Hotel identified by the accused in T.I. Parade, where only Jayminbhai put in witness box to depose in the cross examination of this witness that he admitted that prior to accused, witnesses have already reached. The face of the accused was not covered with mask, when he come to the office. Out of these witnesses, Pramodbhai Natvarbhai was not examined by the prosecution. However, Jayminbhai Thakkar, PW- 7 was examined. In chief as well as in his cross-examination of PW No. 7 specifically says that Police had shown him a person and had asked as to whether that person had stayed in his Hotel or not. Meaning thereby, much before TI Parade is held, the police had already shown accused to this witness. However, Jayminbhai Thakkar, PW- 7 was examined. In chief as well as in his cross-examination of PW No. 7 specifically says that Police had shown him a person and had asked as to whether that person had stayed in his Hotel or not. Meaning thereby, much before TI Parade is held, the police had already shown accused to this witness. Thereby evidentiary value of TI Parade at the hands of witness is completely lost. The accused person was arrested on 25.7.2000. Through transfer warrant, he was sent to the Central Jail and after 3 months, suddenly, T.I. Parade was held. This also creates doubt with regard to the trustworthiness of Test Identification Parade. Therefore, learned Sessions Court has rightly not believed the evidence of the witnesses with regard to the identity of the accused in the T.I. Parade. 33. The prosecution has also heavily relied upon on the panchnama where muddmal was seized. However, no any panchas were examined during the trial to prove the panchnama of the muddamal. In fact, from the deposition of the PW-5, it transpired that muddamal was lying in unattended condition at the police chowky from 11.30 a.m. to 3.00 p.m. In fact, before registering FIR at 23.30 hours, panchnama regarding the seizure of the muddamal drawn, shows lapse on part police officer following the procedure under ‘the Code’. The time regarding panchnama which is mentioned is that first panchnama at 3.00 p.m. by the constable in the presence of two panchas and the second panchnama was continued from 20.40 to 23.00 hours, for quite long time reasons is also not explained by the prosecution. Therefore, the learned trial Judge has rightly discarded the evidence of the seizure of muddamal as the same is not inspiring the confidence. 34. The prosecution had relied on the report of the FSL regarding clothes which is exhibited at Exh.34 wherein the clothes sent (including seized from bag) to FSL are found to contain perspiration – sweat of same person having ‘B’ group. This evidence help to police officer may be used as a corroborative evidence. But this Report of the FSL independently cannot be replaced as a substantive piece of evidence and cannot form the basis of conviction, therefore also, the learned trial Court had rightly not believed it. 35. This evidence help to police officer may be used as a corroborative evidence. But this Report of the FSL independently cannot be replaced as a substantive piece of evidence and cannot form the basis of conviction, therefore also, the learned trial Court had rightly not believed it. 35. The prosecution had also relied upon the report of Lie Detection Test where it is opined that accused is not disclosing the true facts. At the most this Report of the Lie Detection gives an idea that whether the Investigating Officer had investigated the offence in right direction or not. But to form conviction, sole basis of the Report cannot be made. Therefore, learned Trial Judge has rightly not relied upon the same. 36. It is further required to be noted that though 11.30 a.m. - rickshaw along with suspect spotted and brought at chowky, no verification of baggage took place upto 3.00 p.m., that too, by the Head Constable who spotted him. Though suspect / accused ran away leaving baggage, Head Constable did not inform immediately checked the baggage, instead roamed here and there in search of him, as claimed. Despite that at 3.00 p.m., he carried out search of baggage and found charas, he did not inform his superior immediately, not informed about suspect / accused gave a slip to him and ran away, either to control room or even the police station so as to have blockade at the exit gates to round up the accused. 37. After analysing, sifting and assessing the evidence on record with particular reference to its trustworthiness and truthfulness by a process of dispassionate judicial scrutiny, this Court find that there was no evidence to connect the accused with the crime. Prosecution failed to prove the case beyond the reasonable doubt, therefore, respondent is entitled to benefit of doubt. As propounded by the Supreme Court, every accused is entitled to benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the appellate court also. In our view, acquittal of the respondent can hardly be regarded as illegal or erroneous on the basis of evidence on record. 38. As propounded by the Supreme Court, every accused is entitled to benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the appellate court also. In our view, acquittal of the respondent can hardly be regarded as illegal or erroneous on the basis of evidence on record. 38. We have gone through the ratio laid down in the decision of the Apex Court in the case of Harijana Thirupala and others V/s. Public Prosecutor, High Court of A.P. reported in AIR 2002 Supreme Court p. 2821 and in the case of Kunju Mohammed V/s. State of Kerala reported in JT 2003 (7) SCC 114 .The Apex Court has held as under: "Doubtless the High Court in appeal either against an order of acquittal or conviction as a Court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial Court would have proceeded to record a conviction: a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity." 39. This Court has also considered the ratio laid down by the Apex Court in the case of Jafarudheen and others V/s. State of Kerala reported in (2022) 8 SCC 440 more particularly para- 25, which is reproduced herein below. “25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters”. 40. This Court has also gone through the decision rendered in the case of Subramanya V/s. State of Karnataka made in Criminal Appeal No.242 of 2022 decided on 13.10.2022, wherein, Hon’ble Apex court has held in paragraph No.46, as under: “46. Having gone through the entire impugned judgment passed by the High Court, we do not find any satisfaction recorded therein that the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. In the absence of such satisfaction, the High Court, in our opinion, should not have disturbed a well-reasoned judgment of acquittal, passed by the trial court. We shall assign reasons hereafter why the High Court should not have disturbed the acquittal recorded by the trial court”. 41. This Court has also gone through the decision rendered by the Supreme Court of India in the case of Ramesh Babulal Doshi vs The State Of Gujarat reported in 1996(9) SCC 225 para-7 reproduced herein below. “7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not”. 42. It is, therefore, clear from the law laid down by the Apex Court, that the Court in acquittal appeal will be loathe in interfering with the findings of fact arrived at by the learned trial Judge on scrutiny of evidence on record and, when two views are possible even on re-appreciation of evidence, benefit of doubt must go in favour of the accused as per the settled law, and therefore, in the present case, no infirmity in appreciating the evidence by the learned trial Judge is found and, therefore, the order of acquittal passed by the learned trial Judge does not require any interference by this Court. 43. In the result, the appeal fails and is dismissed. Muddamal to be disposed of in terms of the directions given by the learned Judge in the judgment impugned in the appeal. Bail bond stands cancelled.