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2024 DIGILAW 1140 (ALL)

State of U. P. v. Anwar Alam

2024-04-27

NALIN KUMAR SRIVASTAVA, RAHUL CHATURVEDI

body2024
JUDGMENT : Justice Nalin Kumar Srivastava, J. Re: Criminal Misc. Application (Leave to Appeal) 1. This application has been preferred by the learned Stated counsel under Section 395/397, 120-B I.P.C., 7 Criminal Law Amendment Act and Section 5 Explosive Act with the prayer that the leave to appeal be granted against the judgment and order dated 5.8.2023 passed by Additional District and Sessions Judge/ F.T.C.-02, Azamgarh in S.T. No. 171 of 2003 (State Versus Khalilurrahman and Ors) arising out of case crime no. 425H of 2000, P.S.-Mubarakpur, District- Azamgarh, whereby the accused persons/ respondents total 22 in number namely 1. Anwar Alam son of Gulam Rasool, 2. Matiurrahman son of Gulam Rasul 3. Gufran son of Abdul Rashid 4. Mohd. Faisal son of Abdul Rashid 5. Munir son of Hazi Khalil 6. Ayub son of Mohd. Hasan 7. Mohd. Shahid son of Abdul Mani 8. Jamal Akhtar son of Hazi Abdul Mani 9. Faridul Haq son of Abdul Zabbar 10. Asrar Ahmad son of Hazi Irshad 11. Nausad son of Hazi Gaffar 12. Shakeel alia Jheenak son of Masood Ahmad 13. Inamul Haq son of Habirruhman 14. Abdul Mannan son of Abdul Gaffar 15. Shamshul Haq son of Hazi Ali Ahmad 16. Ayub Fauji son of Suleman 17. Zameel son of Wazir Ahmad 18. Kazi Idrish son of Kazi Mohd. Ahmad 19. Mohd. Salim son of Shakir 20. Wahiduzama son of Abdul Bari 21. Shamim son of Iklakh 22. Mukhtar Ahmad son of Nesar Ahmad were held not guilty and thereby acquitted by the Court. 2. The prosecution in this case came forward with a story that on 15.11.2020 at 7.00 pm when the informant Azadar Husain was present in his shop at Kasba Mubarakpur, the named accused persons 26 in number carrying desi pistol, ballambh and knife came over there, and started robbery in the shop and also made fire from desi pistol and threw bombs with intention to kill the informant and other persons present there. In the incident Ehtesham Husain, Ali Ahmad, Musaddik Husain, Makar Ali sustained grevious injuries, some other persons also got injured and the accused persons were identified in the light. The sufferers lost a huge monetary loss in the robbery. The investigation started and charge sheet was submitted and after trial a total number of 22 persons were acquitted. In the incident Ehtesham Husain, Ali Ahmad, Musaddik Husain, Makar Ali sustained grevious injuries, some other persons also got injured and the accused persons were identified in the light. The sufferers lost a huge monetary loss in the robbery. The investigation started and charge sheet was submitted and after trial a total number of 22 persons were acquitted. It is to be noted here that four accused persons expired during course of trial and the trial was abated in respect of them. 3. The prosecution in order to prove its case has produced as many as 7 witnesses. P.W.1 Azadar Husain, the informant, P.W.2 Ehtesham, the injured, P.W.3 Mustakim Husain, the injured, P.W.4 Mujtaba Husain, the injured, P.W.5 Dr. B.N. Chaubey, P.W.6 S.I. Raj Bahadur Singh, and P.W.7 Cons. Ram Bachan Ram. 4. As documentary evidence the prosecution has relied upon Ex.Ka-1-written report, Ex.Ka-2 to Ex.Ka-7 Injury reports of injured Ale Ahmad, Ehtesham Husain, Musaddik Husain, Kamar Ali, Layak Husain and Mukhtar Ahmad, Ex.Ka-8 map, Ex.Ka-9 and Ex.Ka-10 charge sheets, Ex.Ka-11 FIR, Ex.Ka-12 registration G.D. 5. The incriminating circumstances and evidence were put to the accused persons in their statements under Section 313 Cr.P.C. and they claimed the prosecution evidence to be false and fabricated and in defence copy of FIR and charge sheet in case no. 425-I, deposition of P.W.2 in S.T. No. 395 of 2023 and deposition of P.W.1 in S.T. No. 359 of 2023 were produced. 6. P.W.1 Azadar Husain, the informant, while proving written report as Ext.A-1 in his examination in chief supports the prosecution version and named 19 accused persons. He stated that all the accused persons assaulted with bomb and desi pistol in his shop in the course of commission of robbery. Husain and Mukhtar present in the shop sustained grievous injuries then the assailants committed robbery in other shops and fled away. Since the electricity was on, they were well identified. 7. In the same manner P.W.2 Ehtesham Ali has also corroborated the prosecution version and named 18 accused persons and has corroborated their criminal acts and as stated by P.W.1 Ali Ahmad, Kamar Husain, Mukhtar his father Musaddik Husain and he himself has sustained injuries in the incident. All the injured were taken to the hospital. 8. P.W.3 Musaddik Husain also deposed in the same tone and supported the prosecution case in his examination in chief. 9. All the injured were taken to the hospital. 8. P.W.3 Musaddik Husain also deposed in the same tone and supported the prosecution case in his examination in chief. 9. P.W.4 Mujtaba Husain is a chance witness, who has deposed that he had overheard the accused persons making plan to commit crime and to take revenge of the murder of Sunnis. Besides witnesses of fact formal witnesses were also examined 10. P.W.5 Dr. B. N. Chaubey examined all the injured witness namely Mehroob, Ehtesham Husain, Musaddik Husain and Qamar Ali and explained the injuries sustained by the injured persons. Some injuries were referred for x-ray and it was opined that the injuries were sustained by bomb blast. The injury reports were proved as Ex.Ka-2 to Ex.Ka-7. 11. P.W.6 S.I. Raj Bahadur Singh, the I.O. of the case has proved the process of the investigation performed by him. He has proved the map of place of occurrence and two charge sheets as Ex.Ka-8 to Ex.Ka-10 respectively. 12. P.W.7 Constable Ram Bachan, the scribe has proved the chick FIR Ex.Ka-11 and registration g.d. as Ex.Ka-12. 13. The trial Court after end of the trial recorded the acquittal of the accused persons. 14. It has been submitted by the learned State counsel that the prosecution has successfully proved its case on the on the basis of medical evidence and the evidence of injured witnesses as well as eye-witnesses but the learned trial Court has misread the evidence on record and acquitted the accused persons in illegal manner. 15. It has been urged that all the necessary ingredients to bring the matter within the purview of under Section 395/397, 120-B I.P.C., 7 Criminal Law Amendment Act and Section 5 Explosive Act were fully proved on the basis of oral and documentary evidence on record. Medical evidence also supports the prosecution but the learned trial Court only on the basis of surmises and conjectures and analyzing the evidence on record in an illegal manner recorded the acquittal of all the accused persons by the impugned judgment, which is not sustainable under law. It is also submitted that the informant as well as the injured witnesses also supported the prosecution story, hence in the interest of justice, it is expedient to set aside the impugned judgment dated 5.8.2023 by allowing the present appeal. 16. It is also submitted that the informant as well as the injured witnesses also supported the prosecution story, hence in the interest of justice, it is expedient to set aside the impugned judgment dated 5.8.2023 by allowing the present appeal. 16. Per contra, learned counsel for the accused-respondent vehemently opposed the appeal and it is submitted that from the perusal of evidence on record it appears that the essential ingredients to constitute an offence under Sections 395/397, 120-B I.P.C., 7 Criminal Law Amendment Act and Section 5 of the Explosive Substance Act are completely missing in this case and the learned trial Court vigilantly analyzing and scrutinizing the evidence on record passed the acquittal order in legal manner. It is vehemently submitted that on account of insufficient evidence on record it was never possible or justified on the part of the trial Court to record the conviction in the case in hand. 17. Heard learned counsels for the parties and perused the record. 18. It appears from perusal of the record that a total of 22 accused persons were tried in this matter but however out of 22 accused persons four expired during trial and the case in respect of them was abated. As per prosecution case several persons were injured in the incident and they also suffered a huge monetary loss. The prosecution has examined four witnesses as witnesses of fact. The learned trial Court has found many contrary statements in the testimony of witnesses of fact it he also opined that the evidence on record was not sufficient to bring the matter under the clutches of Sections 395/397, 120-B I.P.C., 7 Criminal Law Amendment Act and Section 5 Explosive Act. 19. Before we embark upon the testimony and the judgment of the Court below, the contours for interfering in appeals, where accused has been held to be non-guilty, would require to be discussed. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and another, (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and another, (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 20. Further, in the case of Chandrappa vs. State of Karnataka, reported in (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, 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. [4] An appellate Court, however, 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. [5] 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." 21. Also in the case of State of Goa vs. Sanjay Thakran and another, reported in (2007) 3 SCC 75, the Apex Court has reiterated the power of the High Court in such cases. In para 16 of the said decision, the Court has observed as under: "16. From the aforesaid decisions, it is apparent that 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. 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 any of the accused is connected with the commission of the crime he is charged with." 22. Similar principle has been laid down by the Apex Court in State of Uttar Pradesh vs. Ram Veer Singh and others, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by L.R.s vs. State of MP, 2007 A.I.R. S.C.W. 5589. Similar principle has been laid down by the Apex Court in State of Uttar Pradesh vs. Ram Veer Singh and others, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by L.R.s vs. State of MP, 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 23. The Hon'ble Apex Court recently in Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219 , has laid down the principles for laying down the powers of appellate court in re-appreciating the evidence in a case where the State has preferred an appeal against acquittal, which read as follows: "10. It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittal. However, if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors. ....... It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606, which reads thus: "21.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not." 24. In the case of Luna Ram vs. Bhupat Singh and others, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 25. Even in a recent decision of the Apex Court in the case of Mookkiah and another vs. State Representatives by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while hoosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]" 26. In a recent decision, the Hon'ble Apex Court in Shivasharanappa and others vs. State of Karnataka, JT 2013 (7) SC 66 has held as under: "That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 27. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka vs. Hemareddy, AIR 1981, SC 1417, wherein it is held as under: " ... Such principle is laid down by the Apex Court in the case of State of Karnataka vs. Hemareddy, AIR 1981, SC 1417, wherein it is held as under: " ... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93 :( AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 28. Further, in the case of State of Punjab vs. Madan Mohan Lal Verma, (2013) 14 SCC 153 , the Apex Court has held as under: "The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convincing the accused person." 29. The Apex Court recently in Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SC 750, has held that if the appellate court is reversing the trial court's order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of accused, and to the principle that such a presumption sands reinforced, reaffirmed and strengthened by the trial court and in Samsul Haque v. State of Assam, (2019) 18 SCC 161 held that the judgment of acquittal, where two views are possible, should not be set aside, even if view formed by appellate court may be a more probable one, interference with acquittal can only be justified when it is based on a perverse view. 30. The evidence on record reveals that it was a Shiya-Sunni conflict wherein several persons got injuries by the use of desi pistol and knife. 31. P.W.1, who is the informant proves the written report Ex.Ka-1 in his examination in chief. In the same fashion P.W.2 repeated the same story but making an improvement he has deposed that he got injuries when the assault was made upon him by bomb and his father also sustained firearm injuries. He became unconscious in the incident. Likewise P.W.3 also repeat the same story. He has made a specific statement that Mukhtar, Laik Husain got injuries by use of bomb by the assailants and Samir and Saleem opened fire upon his son Ehtesham and her son also received injuries when Md. Saleem opened fire upon him with desi pistol. He along with his injured son was taken to the hospital. P.W.4 deposed that he had heard some persons talking in the house of Ayyub Faizi to take revenge for the murder of Sunnis and he identified many of them at that time. Saleem opened fire upon him with desi pistol. He along with his injured son was taken to the hospital. P.W.4 deposed that he had heard some persons talking in the house of Ayyub Faizi to take revenge for the murder of Sunnis and he identified many of them at that time. P.W.5 medically examined injured Ali Ahmad, Ehtesham Husain, Musaddik Husain, Kamar Ali, Liak Husain and Mukhtar Ahmad and opined that the injuries sustained by the injured persons were likely to be inflicted by use of explosive substance and the injured persons were referred to x-ray as well. It also appears from the perusal of record that P.W.6 and P.W.7 in their deposition have prima facie supported the prosecution case but however they made some contradictory statements in their cross examination. The learned trial Court has elaborately discussed the entire evidence on record. He has relied upon the statements recorded in the examination in chief of the witnesses but at the same time he also took into account the cross examination of the said witnesses and the documentary evidence on record was also scrutinized by him. He has further emphasised upon the essential ingredients of the offences wherein charges were framed and the necessary elements to constitute the offences under Section 395/397, 120-B I.P.C., 7 Criminal Law Amendment Act and Section 5 Explosive Act were found absent. At the very outset it seems to be not plausible story that a number of 22 accused persons were not only identified but their specific names were taken by the witnesses who were indulged in the commission of the crime. It is strange that not even the name of the single accused was left over. 32. The evidence of P.W.4 Muztaba Husain falls within the category of hearsay evidence. The trial Court has laid down emphasis upon the fact that the as per prosecution story there was a total mess on spot. The prosecution story discloses the factum of attack over the shops and houses of one particular community and firing was made and explosive substance were also thrown inside and outside the shops and houses existed there. Learned trial Court observed that the I.O. has found absolutely no sign of the alleged attack in the shops because no bleeding or sign of burning of clothing etc. was found by the I.O. when he inspected the place of occurrence. Learned trial Court observed that the I.O. has found absolutely no sign of the alleged attack in the shops because no bleeding or sign of burning of clothing etc. was found by the I.O. when he inspected the place of occurrence. The I.O. did not prepare any list of articles which were looted in the incident nor any memo was prepared by the I.O. in respect of materials existed on spot. The trial Court has also opined that it was an unnatural story that about 2 dozen assailants assaulted upon the shops of one particular community, fire was made with the aid of desi pistol and bombs were also thrown but the I.O. did not find any sign of such attack on spot. The prosecution story becomes highly suspicious. It was also taken into account by the trial Court that out of the total accused persons named in the FIR Shamshad Ahmad, Mukhtar Ahmad and Haji Abdul Gani were not present in the district Azamgarh but their presence was found in the city of Hyderabad. In the same fashion one co-accused Abid was detained in the police station at the date and time of the occurrence, hence it was a case of false implication. 33. The learned trial Court also paid attention to the evidence of P.W.4 who is a chance witness and states that some accused persons were making conspiracy of murder inside the house and it was so loud that he easily overheard it from the street, hence P.W.4 was not a reliable witness as correctly opined by the learned trial Court. 34. It was also paid attention to by the trial Court that no memo of looted articles was prepared by the I.O. and moreover FIR is silent on this point as to what were the articles looted from the shop of P.W.1. It was also highlighted by the learned trial Court that no incriminating article was retrieved by the police on the pointing out of the accused or from their possession. 35. P.W.2 who is the injured witness was unable to disclose the relevant facts about the incident because as per his own version he became unconscious on spot. The Trial Court also found that the said witness was a little hesitant to answer the questions put forward by the defence. 35. P.W.2 who is the injured witness was unable to disclose the relevant facts about the incident because as per his own version he became unconscious on spot. The Trial Court also found that the said witness was a little hesitant to answer the questions put forward by the defence. He is not an independent witness and is brother-in-law of the informant and another witness Ehtesham is his son. He also failed to explain as to why he did not produce any list of looted articles before the police. The evidence of P.W.2 is also shaky and no specific role of any accused was disclosed in his entire deposition. 36. P.W.3 Mussadik Husain also states the same version and tries to prove the fact that he along with his son was assaulted with the use of desi pistol and explosive substance etc. The learned trial Court opined on the basis of evidence on record that accused persons Shamshad Ahmad, Mukhtar Ahmad s/o Haji Abdul Gani and Mukhtar Ahmad s/o Nisar Ahmad were not present in the city of Azamgarh on the date and time as the prosecution claims rather he was at Hydrabad at the relevant point of time and one Abid was also arrested by the police on 6.11.2000. This peculiar circumstances led the trial Court to draw a conclusion that the prosecution story is artificial and concocted and no specific role of any accused appellant has been assigned in the alleged incident. The conduct of P.W.4 was also taken into account by the learned trial Court when he admits in his cross examination that whatsoever heard by him was not disclosed to anyone for a period of one and half months and he kept mum, therefore, the evidence on record to prove the criminal conspiracy under Section 120-B on the part of the accused persons was not proved in any way. 37. So far as other offences are concerned learned trial Court has held that the prosecution was bound to prove that the dacoity was committed by five or more persons and it should also be shown by it as to what were the articles which were looted in the incident. 38. 37. So far as other offences are concerned learned trial Court has held that the prosecution was bound to prove that the dacoity was committed by five or more persons and it should also be shown by it as to what were the articles which were looted in the incident. 38. P.W.2 who became unconscious, on spot is unable to tell the name of the accused persons and the weapons used by them but for the first time making an improvement to his statement under Section 161 Cr.P.C. for the first time he named accused Shamim and Mohd. Salim having desi pistol with them in his deposition before the Court. He also admits that he did not disclose to the I.O. as to which articles were looted by the assailants. Hence the prosecution so far as the testimony of witnesses of fact is concerned miserably fails to prove the case beyond reasonable doubt. It was rightly opined by the trial court that the I.O. in the map Ex.Ka-8 has shown the shops of different persons wherein the incident of dacoity took place but however all such shops are not situated at one place but they spread on separate roads and lanes and the witnesses of fact, P.W.1, 2, and 3 were not in a position to witness the incident of dacoity committed in the shops which were situated in some distant lanes or roads. No explosive substance or desi pistol was recovered from any of the accused persons. It was also noticed by the learned trial Court that the assailants never tried to hide their identity before the aggrieved persons and at this stage also the prosecution story is not plausible because if the accused persons were well known to the complainant and other aggrieved persons they should have to make effort to hide their identity. 39. It is a settled principle that while exercising appellate powers, even if two reasonable views/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. 40. The present government appeal arises out of the judgment passed in the sessions trial which is of the year 2003. 40. The present government appeal arises out of the judgment passed in the sessions trial which is of the year 2003. The State has examined several witnesses in support of its case but there are inconsistency in their oral testimonies and material contradictions as narrated earlier in this judgment have been sought to be assailed by the learned A.G.A., however, learned counsel for the defence has successfully proved that the accused persons have rightly been acquitted by the trial Court. Learned trial Judge has rightly appreciated the evidence on record and has given cogent reasons in the judgment impugned. The factual scenario in the present case will not permit us to take a different view than that taken by the court below. In that view of the matter and on the contours of the judgment of the Hon'ble Apex Court, we are unable to satisfy ourselves. Thus, we concur the findings of the court below recorded in the impugned judgment. 41. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected. Re: Government Appeal 1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by the order of date, the present government appeal is also dismissed.