JUDGMENT : (Umesh A. Trivedi, J.) : ORDER IN CRI. MISC.APPLICATION NO. 1 of 2012 Cr.M.A. No. 1 of 2012, converted from Cr.M.A. No. 14806 of 2012, is filed by the original first-informant praying for joining party in the aforesaid Criminal Appeal, which is filed by the State of Gujarat challenging the judgment and order of acquittal rendered in favor of respondent – accused. As such, we have heard Mr. Tanvir Y. Malek, learned advocate for Mr. R.J. Goswami, learned advocate for the applicant. Therefore, there is no need to join the first-informant as party in the appeal proceedings. Even otherwise it is filed by the first-informant, who can assist the learned APP in hearing, whereas we have heard him as well. In view thereof, this Criminal Misc. Application stands disposed of. ORDER IN CRIMINAL APPEAL NO. 430 of 1996 1. This appeal under Section 378 of the Code of Criminal Procedure, 1973 is filed by the State challenging the judgment and order of acquittal passed by Additional Sessions Judge, Panchmahal at Godhra dated 14.02.1996 in Sessions Case No. 196 of 1993, whereby total 16 accused were prosecuted and came to be acquitted by the Court. There were in all 17 accused against whom charge came to be framed. However, accused No. 8 – Shankarlal Raghabhai Valand died pending trial, and therefore, case against him stood abated. That is how this present appeal came to be filed against 16 named accused. 2. While hearing this appeal for admission, this appeal was not pressed against lady accused being respondent Nos. 8 – 13, which came to be dismissed qua them. During pendency of the aforesaid appeal, respondent Nos. 4, 6 and 7 died, and therefore, this appeal against them stood abated. For the remaining accused Nos. 1, 2, 14, 15 and 16, Mr. K.B. Anandjiwala, Senior advocate, learned Counsel appeared. Mr. D.H. Rahevar, learned advocate represents respondent Nos. 3 and 5. 3. As per the case of prosecution, on 10.09.1992, at about 7:00 p.m., while first-informant – Sarojben Atulkumar Pandya was sitting outside her house at Brahman Faliya, accused Dharmendrasinh Thakor and others armed with sticks, stones, crowbar and hurling abuses shouted to remove first-informant out of the village, and therefore, she locked herself inside her house. 3 and 5. 3. As per the case of prosecution, on 10.09.1992, at about 7:00 p.m., while first-informant – Sarojben Atulkumar Pandya was sitting outside her house at Brahman Faliya, accused Dharmendrasinh Thakor and others armed with sticks, stones, crowbar and hurling abuses shouted to remove first-informant out of the village, and therefore, she locked herself inside her house. It is the case of the prosecution that accused Dharmendrasinh Thakor – A1 broke open the door with crowbar and rest of them pushed in and entered her house illegally and gave stick blows on her head. A4 – Kantilal threw stones at her and abused her too. Thereafter, according to the case of prosecution, other accused went to the rear door of the house and they broke opened it and entered the house and ransacked it, causing damage to the property to the tune of Rs. 20,000/-. While running away, they threatened the first-informant of dire consequences. 3.1 It is further stated that thereafter Manubhai Rawatbhai Valand and his brother Dharmendra came to be informed and Manubhai – PW 10 came and took her for treatment. Thereafter she gave complaint to the Police and on completion of investigation, a charge-sheet has come to be filed against the accused. Since the offence alleged against the accused was triable by Court of Sessions, learned Magistrate committed it to the Court of Sessions. 3.2 Pursuant thereto, vide Exhibit-2, charge came to be framed against in all 17 accused, including accused No. 8, who later on died during the pendency of trial. Therefore, case against him came to be abated as aforesaid. Now, in this judgment, respondent – accused are mentioned as per their serial number herein in this appeal and not as per the charge framed, with a view to avoid confusion. Though appeal was not pressed for certain lady accused Nos. 8 to 13, remaining accused are referred to as per their number shown in the memo of appeal. 3.3 Charge came to be framed against the accused for the offences punishable under Sections 147, 148, 149, 307, 427, 452, 337, 294(b), 504 and 506(2) of the Indian Penal Code (hereinafter referred to as “IPC”). Over and above that, charge was also framed against all the accused for an offence under Section 135 of the Gujarat Police Act. 3.3 Charge came to be framed against the accused for the offences punishable under Sections 147, 148, 149, 307, 427, 452, 337, 294(b), 504 and 506(2) of the Indian Penal Code (hereinafter referred to as “IPC”). Over and above that, charge was also framed against all the accused for an offence under Section 135 of the Gujarat Police Act. 3.4 With a view to prove the case against the accused, prosecution examined in all 13 witnesses. Over and above that, certain documents were produced and proved during the course of trial. Prosecution Witness Nos. 1 to 7 came to be examined by the prosecution but since they did not support the case of prosecution, they were declared hostile. However, Prosecution Witnesses Nos. 1 to 6 are panch witness to the different panchnamas. PW 7 – Narvatsinh Khodsinh Parmar was the then Sarpanch of the village, when examined before the Court 10 years prior thereto. 3.5 The husband of the first-informant – PW 11 – Sarojben Atulkumar Pandya was also Sarpanch of that village prior to PW 7 – Narvatsinh became Sarpanch. Though PW 7 - Narvatsinh knows first-informant, it appears that he did not support the case of the prosecution, and therefore, he was declared hostile to the case of prosecution on a request made by the learned APP. PW 8 – Dr. Rakeshkumar Parmar, who treated first-informant – injured, is examined by the prosecution to prove injuries over the first-informant. PW 9 – Sarita is the real sister and PW 10 – Manubhai is the known person to the first-informant, whereas PW 11 is the first-informant, who is examined before the Court. PW 12 – Faridkhan Rashidkhan Pathan, who is a rickshaw driver bearing registration No. GJ-17-T-561, in whose rickshaw PW 10 – Manubhai took the injured – first-informant - PW 11 – Sarojben to the hospital via Police station, whereas PW 13 – Rajubhai Somabhai Sharma is the Investigating Officer, who investigated the case. 3.6 On overall appreciation of the evidence adduced before the Court and documents produced, the learned Judge acquitted all of them and rejected the testimony of the first-informant being not wholly reliable. Therefore, present appeal challenging the judgment and order of acquittal rendered by the learned Judge is filed. 4. We have heard Mr. Ronak Raval, learned APP for the State. 4.1 Mr. K.B. Anandjiwala, Senior advocate, learned Counsel for respondent Nos. Therefore, present appeal challenging the judgment and order of acquittal rendered by the learned Judge is filed. 4. We have heard Mr. Ronak Raval, learned APP for the State. 4.1 Mr. K.B. Anandjiwala, Senior advocate, learned Counsel for respondent Nos. 1, 2, 14 – 16. Mr. D.H. Rahevar, learned advocate for respondent Nos. 3 and 5, whereas Mr. Tanvir Y. Malek, learned advocate for Mr. R.J. Goswami, learned advocate on behalf of first-informant, though not joined as a party respondent but heard in detail. 4.2 Mr. Ronak Raval, learned APP, vehemently submitted that though PW 11 – first-informant having several injuries, which is corroborated by even medical evidence, learned Judge has committed serious illegality in not believing the case of the prosecution and acquitting the accused. 4.3 He has further submitted that deposition of first-informant is supported by PW 10 – Manubhai Rawatbhai, PW 12 - Faridkhan Rashidkhan Pathan as also Dr. Rakeshkumar Chaganlal Parmar. 4.4 After drawing attention of the Court to the deposition of PW 10 – Manubhai Rawatbhai as also PW 12 - Faridkhan Rashidkhan Pathan, in whose rickshaw the injured – Sarojben was taken to hospital, it is submitted that while going to the hospital, she was taken to the Police station and therefrom Police yaadi was also obtained. 4.5 He has further submitted that commission of an offence as alleged is corroborated by the injuries sustained and certified by PW 8 – Dr. Rakeshkumar, that too in proximate time, leaves no room for doubting the case of prosecution. Informing the Police as also taking her to the hospital, there are two witnesses, who have fully supported the case of prosecution and there is nothing adverse in their depositions so as to disbelieve the case of prosecution. 4.6 He has further submitted that even if there is minor contradiction in the case of prosecution, the injuries sustained by the first-informant, which is corroborated by the medical certificate issued by the Doctor, leaves no room for the conclusion that the incident has occurred in the manner in which it is deposed to. Therefore, it is submitted that there is no view, other than the view convicting the accused, is available on record, and therefore, judgment and order of acquittal passed by the learned Judge is erroneous and illegal and requires to be interfered with. 4.7 Mr. K.B. Anandjiwala, Senior advocate, learned Counsel, as also Mr. Therefore, it is submitted that there is no view, other than the view convicting the accused, is available on record, and therefore, judgment and order of acquittal passed by the learned Judge is erroneous and illegal and requires to be interfered with. 4.7 Mr. K.B. Anandjiwala, Senior advocate, learned Counsel, as also Mr. D.H. Rahevar, learned advocate, for the respective accused, submitted that the case pleaded by the prosecution is not free from doubt. Prosecution has failed to establish the guilt of accused beyond reasonable doubt. Not only that, it is submitted that prosecution has failed to bring home the charge against the accused and no view other than the view taken by the learned Judge is available on established facts and the evidence, and therefore, there is no room for interference in an order of acquittal rendered by the learned Judge. 4.8 He has further submitted that even if there are two views possible, the view, which is favorable to the accused, which is already taken by the trial Court should be accepted, and therefore, the appeal challenging the judgment and order of acquittal need not be entertained. Therefore, they have submitted that not only certain accused have already died, even appeal is not pressed against 6 of the accused. Therefore, for the incident which occurred nearly 32 years back may not be reopened as all have settled in their life. Therefore, it is submitted that the appeal deserves to be dismissed. 4.9 Mr. Tanvir Y. Malek, learned advocate for Mr. R.J. Goswami, learned advocate for the original first-informant attempted to submit that there is a pre-planned attack by the accused, and therefore, certain accused assaulted from the front door of the house, whereas remaining accused after some time attacked and ransacked the house of the first-informant by breaking open the rear door. The intention of the accused, as submitted by the learned advocate Mr. Tanvir Y. Malek, is very clear to commit an offence punishable under Section 307 of the “IPC”, that too, by an unlawful assembly of the accused. Reading the deposition of PW 8 – Dr. Rakeshkumar, it is submitted that the injury shown in the deposition as also the certificate is caused as alleged in the deposition of PW 11 – first-informant – injured and is possible by stick and by pelting stones. Reading the deposition of PW 8 – Dr. Rakeshkumar, it is submitted that the injury shown in the deposition as also the certificate is caused as alleged in the deposition of PW 11 – first-informant – injured and is possible by stick and by pelting stones. Therefore, assertion in the form of evidence of an injured witness is corroborated by the injuries as also medical certificate and the deposition of a Doctor, which can’t be lightly ignored. Therefore, he has submitted that some minor contradiction here or there cannot be given that much importance so as to acquit the accused. Therefore, he has submitted that the appeal preferred by the State be allowed and the accused be punished accordingly. 5. Having heard the learned advocates for the appearing parties as also going through the impugned judgment and order and the evidence of witnesses along with the documents, it emerges that accused are alleged to have formed an unlawful assembly, according to the case of prosecution, and in a pre-planned manner, they have attempted to cause murder of the injured – first-informant. However, the learned trial Judge, on appreciation of evidence led before it, acquitted all the accused of the charge leveled against them. However, we are conscious of our jurisdiction, while dealing with an appeal challenging the judgment and order of acquittal on principle that innocence of the accused is strengthened by the acquittal recorded by the trial Court. At the same time, unless and until there is clinching evidence leading to the conclusion that there is no other view than the view whereby accused are to be convicted, there cannot be any interference in the judgment and order of acquittal. 5.1 We are further conscious of the fact that even if there are two views possible out of the evidence led before the Court, the view, which is in favor of the accused taken by the trial Court, cannot be interfered with while dealing with an acquittal appeal. 5.2 Considering the aforesaid well accepted principles in mind, let us examine the evidence adduced by the prosecution. Though the panch-witnesses PW Nos. 1 to 6 have turned hostile, the recovery/discovery of the object or muddamal can be said to be proved through the deposition of the Investigating Officer. However, in the present case, even deposition of the Investigating Officer is also lacking in asserting that. Though the panch-witnesses PW Nos. 1 to 6 have turned hostile, the recovery/discovery of the object or muddamal can be said to be proved through the deposition of the Investigating Officer. However, in the present case, even deposition of the Investigating Officer is also lacking in asserting that. Therefore, we have been left with the depositions of PW 8 – Dr. Rakeshkumar, PW 9 – Sarita Vasudev Sharma, who happens to be the real sister of the first-informant, PW 10 – Manubhai Rawatbhai, who happens to be known to the first-informant. PW 11 – Sarojben – first-informant - injured herself. PW 12 – Faridkhan Rashidkhan Pathan, in whose rickshaw the injured was taken to the hospital as also the Police station and the deposition of the Investigating Officer. 5.3 As per the first-informant - PW 11 – Sarojben, she had enmity with Thakor community of the village as her husband being Brahmin was elected as the Sarpanch of it. She has further asserted that she has some civil dispute with regard to the property with A3 – Pramodkumar Valand and others. 5.4 According to her deposition, on the date of incident, while she was sitting outside her house, A1 – Dharmendra Thakor of her Mohalla, A2 – Bakul Thakor, A3 – Pramod Valand, A4 – Kantilal came running with respective weapons in their hands, which includes crowbar, stick and stones towards her house, hurling filthy abuses and shouting to remove her from the village or kill her. Therefore, out of fear, she locked herself inside the house. It is further stated that A1 – Dharmendra Thakor broke open the door and rest pushed the same, and therefore, it was broken open. Thereafter, those four named accused entered her house and A3 - Pramod Valand gave stick blow over her head, A2 - Bakul Thakor gave stick blows and A4 – Kantilal threw stones over her. It is further deposed to that A1 – Dharmendra Thakor instigated all of them to kill her. As per her further assertion, she fell down, and therefore, all the four ran away. According to her version, after about 2 – 5 minutes, she heard a commotion towards the rear door of her house. It is further deposed to that A1 – Dharmendra Thakor instigated all of them to kill her. As per her further assertion, she fell down, and therefore, all the four ran away. According to her version, after about 2 – 5 minutes, she heard a commotion towards the rear door of her house. The rear door of the house was also broken open by the remaining accused with respective weapons in their hands, they entered the same and ransacked her house, which caused damage to the property to the tune of nearly about Rs. 15,000 – 20,000/-. However, when she raised a shout, they all ran away giving threats to her of dire consequences. 5.5 She has further stated that on hearing the shouts, PW 10 – Manubhai rushed to the spot and he tied ‘Lungi’ over her head. Thereafter witness – Manubhai went to call for rickshaw. She was taken in a rickshaw to the hospital. As they felt, while going towards the hospital, to go to the Police station, Sarojben remained in a rickshaw, PW 10 – Manubhai went to the Police station and called the Policemen there. It was asserted that she was given a yaadi and along with the same, they all went to the hospital. It was further asserted that she was admitted to the hospital and treatment started. She was given treatment throughout the night. In the morning next day, according to her deposition, PSI recorded her FIR, which is produced at Exhibit-55. She identified the muddamal and thereafter she was further treated at Godhra Civil Hospital and again her xray was taken. After two days, she went to Ahmedabad and there also, her x-ray was taken and she was treated there. Thereafter she was brought back to Kalol hospital. 5.6 Now, let us examine her assertion made in the examination-in-chief against each of the accused. Though she has stated that several accused attacked her with different weapons, i.e. sticks, stones, etc., there were only seven injuries, that too, of CLW and Abrasion as also Swelling. Out of seven injuries shown, not a single injury was a bleeding injury after it is caused. It is interesting to record that no indoor case papers of Kalol hospital, Godhra hospital or the hospital at Ahmedabad are produced by the prosecution to lend assurance to the medical certificate issued by Dr. Out of seven injuries shown, not a single injury was a bleeding injury after it is caused. It is interesting to record that no indoor case papers of Kalol hospital, Godhra hospital or the hospital at Ahmedabad are produced by the prosecution to lend assurance to the medical certificate issued by Dr. Rakeshkumar – PW 8 at Exhibit-43, despite she was treated as an indoor patient from 10.09.1992 to 03.10.1992. This is something shocking as injuries of the nature mentioned in the certificate would not require even admission as an indoor patient and only outdoor treatment would be given to such person having such injuries. 5.7 Furthermore, even PW 8 – Dr. Rakeshkumar has also not stated anything as to why patient was required to be sent to Godhra as also Ahmedabad hospital. Not only that, neither any transfer chit to higher medical centre nor any forwarding letter for a specific purpose of treatment of injured, if she is sent to the higher centre, either produced or even deposed to by PW 8 – Dr. Rakeshkumar. Not only that, except stating in the injury certificate Exhibit-43 of the first-informant, PW 8 – Dr. Rakeshkumar has also not mentioned anything as to why injured was required to be sent to Godhra on 18.09.1992 and 19.09.1992 as also why she was referred to Ahmedabad. That creates very serious doubts about the injuries to which Doctor deposed to before the Court and the nature of the injuries mentioned in the certificate itself. 5.8 Not only that, first-informant – PW 11 – Sarojben claimed that PW 10 – Manubhai called Police outside the Police station where her rickshaw was stopped and Police gave her a written yaadi and she went to the hospital with the same. However, to a specific question in her cross-examination, after showing Exhibit-44, which is Police yaadi written by the Police Station Officer, Kalol to Medical Officer, Community Health Centre, Kalol, where she claims that she did not sign that yaadi. However, PW 8 - Dr. Rakeshkumar is very specific in his deposition before the Court in a cross-examination that on 10.09.1992 i.e. the date of her examination, injured came with Police yaadi signed by her, which was given Exhibit-44. Surprisingly, if that yaadi is seen, it bears Crime Register No. 235 of 1992. However, PW 8 - Dr. Rakeshkumar is very specific in his deposition before the Court in a cross-examination that on 10.09.1992 i.e. the date of her examination, injured came with Police yaadi signed by her, which was given Exhibit-44. Surprisingly, if that yaadi is seen, it bears Crime Register No. 235 of 1992. However, as per the case of the prosecution as also the first-informant, her complaint was recorded on 11.09.1992. If yaadi is written on 10.09.1992 for treatment and admission, if at all required, when no FIR was registered, how that Crime Register number is mentioned in Exhibit-44 Police yaadi to treat the injured is still unanswered. Not only that, if injury certificate Exhibit-43 if seen, where history of assault on 10.09.1992 at 2 p.m. is mentioned. With a view to see that the Doctor, who treated injured not exposed, he has nowhere in his deposition, stated time when injured was examined by him. It appears to be very deliberate as according to the case of prosecution as also PW 11 – Sarojben – first-informant, alleged incident took place at 7 p.m. on 10.09.1992. In a pertinent cross-examination of PW 8 - Dr. Rakeshkumar, he had to state that he brought the papers in respect of examination of Sarojben by him and he had to admit that alleged assault, as recorded in a certificate in the form of history, took place on 10.09.1992 at 2 p.m.. At the same time, very cleverly, Doctor is silent about who gave history for the reasons best known to him. At the same time, PW 10 – Manubhai, who reached the spot where alleged incident took place on hearing shouts of Sarojben and he took injured Sarojben in a rickshaw immediately to the hospital via Police station in the evening. Therefore, history could have been given either by the injured herself – PW 11 – Sarojben or by Manubhai, who brought her to the hospital. If the alleged incident took place, according to both of those prosecution witnesses, at 7 p.m., they would not have stated time of the assault to be 2 p.m.. At the same time, Doctor, who examined her on his own, would not have stated different time than the time stated by the persons who gave history. If the alleged incident took place, according to both of those prosecution witnesses, at 7 p.m., they would not have stated time of the assault to be 2 p.m.. At the same time, Doctor, who examined her on his own, would not have stated different time than the time stated by the persons who gave history. Therefore, at each stage, there appears to be some maneuvering attempted by the prosecution witnesses and the evidence led before the Court is full of mysteries, which is not believable at all in the manner in which they want the Court to believe. As such, incident must not have occurred as per the deposition of the injured and with a view to wreak vengeance against the village persons, all have been named and prosecuted. There are more than one reasons to discard the testimony of the injured witness herself along with PW 10 – Manubhai. 5.9 According to the case of prosecution and more particularly, PW 11 – Sarojben, there is no male member staying with her after the death of her husband since long, whereas as per the case of defence, PW 10 – Manubhai is having some relation with her and stays there occasionally. Such suggestion made by the defense is flatly refused by PW 11 – Sarojben. If that refusal is to be accepted, how come that ‘Lungi’ was tied over her head and whether it was bloodstained or not. Nowhere prosecution has brought that bloodstained clothes which were tied over her head before the Court. It was neither noticed by anyone nor even it is sent to the FSL to support the claim made by the injured eye-witness herself. It is again a mystery that in absence of any male member staying in the house since long after the death of her husband, how come that cloth, which is normally worn by male members, is found from her house. Over and above that, though PW 11 – Sarojben in an attempt to project Manubhai as an independent witness has not stated anything about how Manubhai is known to her and he volunteered to help her in taking a rickshaw to the hospital as also to the Police station. However, PW 10 – Manubhai, who claims to stay in village Bakrol, had to admit that in a Bhagat Faliya of village Bakrol, he does not have any residential house. However, PW 10 – Manubhai, who claims to stay in village Bakrol, had to admit that in a Bhagat Faliya of village Bakrol, he does not have any residential house. 5.10 Considering the cross-examination of PW 11 – Sarojben – first-informant she had to admit that one Kokilaben, who appears to be accused No. 11 in the present appeal, had filed a complaint on 10.08.1992 against her and Manubhai as well. These are the instances from where at least some connection in between PW 10 – Manubhai as also PW 11 – Sarojben – first-informant can be inferred. Though not brought out by way of an effective cross-examination of the witnesses, factum of real sister of the injured being an advocate as also one of the brother serving as Police Inspector in Railway Police Force, prosecution is unable to deny the said facts, as during the course of investigation it was revealed from their statements. Nothing much turns on it but fact remains that, as observed by the learned Judge, the incident has not occurred as projected by the first-informant and witnesses. Therefore, we are unable to take a different view than the view taken by the learned Judge while ordering acquittal of all of them. Hence, we do not find any reason to interfere with the order of acquittal. 6. Learned trial Judge has taken the view, which is possible and plausible, based on the appreciation of evidence and we do not find any flaw in it. Even if there are two views possible, if the view which is in favor of the accused has to be accepted, we do not intend to interfere in the well-reasoned order of acquittal recorded by the learned Judge. In view thereof, we dismiss the appeal filed by the State challenging the impugned judgment and order of acquittal.