JUDGMENT : 1. Present petition filed u/s 397 r/w section 401 of the Code of Criminal Procedure, 1973, the petitioner challenges judgment and order dated 12.3.2004 passed by the learned Assistant Sessions Judge, Rajkot in Sessions Case No.143 of 2001, whereby the learned Session Judge has acquitted the respondents accused. 2. The brief facts of the case are that the deceased Vipul was staying with the complainant Dipakbhai and was learning silver work from the complainant. That on 9.7.2001, when Dipak and his friend Chandresh came to the house of the complainant, they found the door open from outside and found deceased Vipul lying on the ground. Thereafter, deceased Vipul was shifted to the Hospital, where the doctor found him dead. Therefore, the complainant Dipak filed complaint against unknown persons before Rajkot “B” Division Police Station being I – C.R. No. 453 of 2001. 3. Charge was framed. The petitioner pleaded not guilty and claimed to be tried. Therefore, the case was returned for recording the prosecution evidence. The prosecution has examined witnesses, as also produced documentary evidence. The learned trial Court having appreciated the said evidence recorded the finding as noted in the judgment culminated in acquittal as stated supra. 4. Hence, present petition. 5. Learned advocate Mr. Nirav Thakkar for the petitioner referring to the deposition of the investigating officer and the recovery of silver, which is proved from the deposition of the investigating officer, would submit that circumstantial evidence suggests that the accused have committed offence, but the learned Sessions Court has failed appreciate this evidence. Learned advocate for the petitioner apart from this, has failed to point out any other submission to inculpate the accused for the charges levelled against them. 6. On the other hand, learned advocate Mr. Pratik Jasani for the respondents, except respondent No.4, who expired during the pendency of the trial, would submit that almost all witnesses examined by the learned Sessions Court either turned hostile or in their depositions, contradiction is recorded. Even not a single chain of circumstances is proved. He would further submit that the investigating officer could not be considered as witness to prove the circumstantial evidence. The witnesses, who are arraigned as witness for the prosecution have to establish the chain of circumstances. Therefore, it is submitted that the learned Sessions Court has not committed any illegality in arriving to a conclusion acquitting the accused. He would further submit that the investigating officer could not be considered as witness to prove the circumstantial evidence. The witnesses, who are arraigned as witness for the prosecution have to establish the chain of circumstances. Therefore, it is submitted that the learned Sessions Court has not committed any illegality in arriving to a conclusion acquitting the accused. Therefore, it is submitted to this revision. 7. Learned APP, in background of the facts and circumstances, submits to pass necessary order. 8. Before I advert to the points canvassed by the Learned advocate for the petitioner, let refer judgment of the Hon’ble Apex Court rendered in case of Vimal Singh Vs. Khuman Singh reported in 1998(7) SCC 223 , whereby the Hon’ble Apex Court has examined the scope of revisional jurisdiction of this Court. The relevant para is 7, which reads as under:- “7. Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In fact, subsec. The only course left to the High Court in such exceptional cases is to order retrial. In fact, subsec. (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction. In view of the limitation on the revisional power of the High Court, the High Court in the present case committed manifest illegality in convicting the appellant under Section 304, Part-I and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal.” 9. Applying the above principles to the facts of the case, as to find out that whether the private petitioner, who is original complainant has made out exceptional case enumerated in the aforesaid decision, let refer evidence on record. 10. The entire case of the prosecution is in regards to the circumstantial evidence of the case. The Hon’ble Apex Court in case of Sharad Birdhichand Sarda Versus State Of Maharashtra reported in 1984(4) SCC 116 , wherein, the Hon’ble Apex Court dealt with the issue of circumstantial evidence how to be proved and established. The material conditions must be fulfilled before fining the accused. The relevant para reads as under:- “151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant V/s. State of Madhya Pradesh, 1952 SCR 1091 . This case has been uniformly followed and applied by this Court in a large number of later decisions up- to-date, for instance, the cases of Tufail V/s. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, AIR 1972 SC 656 . It may be useful to extract what Mahajan, J. has laid down in Hanumant's case : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade V/s. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” As discussed herein above, the prosecution has failed to prove the circumstantial evidence against accused. The impugned judgment is plausible. Learned advocate Mr.Thakkar for the petitioner failed to bring any other view, which could be established in the case. Even, otherwise, it is established principles that the view favouring the accused has to be given weightage. 11. The impugned judgment is plausible. Learned advocate Mr.Thakkar for the petitioner failed to bring any other view, which could be established in the case. Even, otherwise, it is established principles that the view favouring the accused has to be given weightage. 11. As per the deposition of the doctor, it is proved that the death of the deceased was unnatural and it was not suicide. The deposition of Dr. Jagdish Tank (Exh.62) and PM report (Exh.65) established that it was unnatural death and the deceased was killed. The learned Sessions Court has recorded elaborate reasons for issue No.1 in the impugned order to believe that it was unnatural death and this issue has not been challenged by the complainant before the Court. 12. Referring to the deposition of complainant Dipakbhai at Exh.42, complaint at Exh.43, deposition of Bhaveshbhai Limbasia at Exh.60 and deposition of the investigating officer at Exh.79. The learned Sessions Court has believed that the deceased was last seen together with the accused, but apart from that, there is no other evidence on record, which indicates that the accused have killed the deceased. The anomaly, which is further noticed by the learned Sessions Court was that though it is allegation of loot of 4.58 kg silver, the recovery was in tune of Rs.11 kg and thus, there is contradiction in case of the prosecution. The learned Sessions Court has vividly discussed this issue after referring to discovery panchnama at Exhs.57,58,59 etc. The rest of the evidence if gone through, they are not direct evidence and they are not even forming part of the circumstantial evidence. In nutshell, the prosecution was not in a position to form complete chain of circumstantial evidence. 13. This Court, under the limited jurisdiction u/s 397 r/w section 401 of the Code of Criminal Procedure, 1973 has re- appreciated the arguments of learned advocate Mr. Nirav Thakkar as to find out any miscarriage of justice, but no other conclusion could be arrived at and no other aspect could be reasoned to interfere with the impugned order or any illegality is found in the impugned order. 14. The Hon’ble Apex Court in case of Ballu @ Balram @ Balmukund Versus State Of Madhya Pradesh reported in 2024 (0) INSC 258 , wherein the Hon’ble Apex Court observed as under:- “6. Undoubtedly, the prosecution case rests on circumstantial evidence. 14. The Hon’ble Apex Court in case of Ballu @ Balram @ Balmukund Versus State Of Madhya Pradesh reported in 2024 (0) INSC 258 , wherein the Hon’ble Apex Court observed as under:- “6. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 = 1984 INSC 121 wherein this Court held thus: "152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [ (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [ (1972) 4 SCC 625 : AIR 1972 SC 656 ] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 153. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 7. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 7. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused must be and not merely may be proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between may be proved and must be or should be proved. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused. 8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.” 15. This Court in case of Sikandarbhai Daudbhai Kankrolia Versus State Of Gujarat rendered in Criminal Revision Application No.532 of 20023, has observed following:- “8. The jurisdiction of the Court in such revision petitions is limited by the statute itself, thereby prima-facie, the Court has to look into the issue regarding irregularity or illegality, if any, committed by the trial Court while passing the impugned judgment and whether the impugned judgment has ultimately resulted into miscarriage of justice or absolute injustice to either of the litigants. Therefore, this being the first revision against the order of acquittal, though this Court is empowered to re- appreciate the evidence, to examine that whether appreciation of evidence by the trial Judge has resulted into miscarriage of justice or not, it is settled legal position that such re-appreciation of evidence has to be done with limited jurisdiction and authority so as to verify the irregularity and illegality only and evidence cannot be re- appreciated or dealt with, only because of different opinion of the Appellate Court. Thereby, the Appellate Court has to be careful while re-appreciating the evidence in case of acquittal and decision of acquittal can be interfered only and only if the appreciation of evidence by the trial Judge is absolutely unjust and illegal and without consideration of settled legal position and applicable law. Thereby, only because someone is able to take a different view from the same set of evidence, on such ground alone, the evidence cannot be re-appreciated so as to convert the decision of acquittal into that of conviction of accused. To that extent, the Apex Court has categorically stated that in case of acquittal appeal or revision, the accused have got double benefit in their favour viz. (1) a standard rule of criminal jurisprudence that no-one should be believed as an accused unless there is proper proof and evidence against him and (2) in such cases of acquittal, the judgment of acquittal, which is otherwise confirming either innocence or lack of evidence against such accused. Therefore, respondent before us though they were accused before the trial Court, they are having a clear verdict in their favour by the trial Court that either they are innocent or there is lack of evidence so as to convict them and, therefore, in such cases, the re-appreciation of evidence is to be done with great care and order of acquittal can be interfered only and only if there is absolute and clear evidence without any doubt regarding commission of offence by such respondent. Therefore, the smallest benefit of doubt would certainly tilt in favour of the respondents in criminal appeal or revision.” 16. The presumption runs in favour of the accused that he is innocent till he is declared guilty doubles his innocence once is acquitted by the concerned learned Sessions Court. If two views are possible, the view favouring the accused has to be taken and considered. The presumption runs in favour of the accused that he is innocent till he is declared guilty doubles his innocence once is acquitted by the concerned learned Sessions Court. If two views are possible, the view favouring the accused has to be taken and considered. In the present case, the complainant has failed to point out any view, which favours the complainant or the prosecution. All the views lead towards innocence of the accused. 17. This Court finds no merit in the present petition and accordingly, present petition stands dismissed. 18. However, right of the petitioner to prefer any application u/ s 452 of the Code to obtain muddamal silver is kept open subject to the provisions of law. Consequently, Criminal Misc. Application for direction also stands disposed of. 19. R & P be sent back to the concerned Court immediately.