JUDGMENT : (PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY) 1. Respondents no.1 and 2 are accused nos.1 and 2 in Sessions Case No.43 of 2012 on the file of Sessions Judge, Gandhinagar. They were prosecuted for the offences punishable under Sections 302 , 394, 201, 114 of the INDIAN PENAL CODE , 1860 (for short “the IPC”) and under Section 135 of the GUJARAT POLICE ACT . Eventually, after trial, they were acquitted of the said offences as per the judgment rendered by the trial court on 27.02.2013 to that effect. 2. Aggrieved by the said judgment of acquittal, the State has preferred the instant appeal challenging the legality and validity of the impugned judgment of acquittal. 3. Concise statement of facts relating to the prosecution case may be stated as follows:- 3.1 Accused No.3-Mohsin Babubhai Mansuri is a juvenile and accused no.2 is a driver by profession and he was living by running an auto rickshaw bearing registration number GJ-18-AT-7919. The respondents herein, who are the accused nos.1 and 2 are associated with accused no.3. On 21.08.2011 at about 8:00 p.m. in the night, the said auto rickshaw was stationed at Happy Valleyside, City Pulse of Gandhinagar. Accused no.3 was sitting in a driver seat in the auto rickshaw and accused nos.1 and 2 were sitting on the back side of the said auto rickshaw. At that time PW- 14 and his brother by name Mukesh (here in after referred to as “the deceased”) came out from their house for the purpose of purchasing Atta. They boarded the said auto rickshaw to go to Dholakuva. They sat on the backside seat of the auto rickshaw. When they boarded the auto rickshaw, they found accused no.3 in the driver seat of the auto rickshaw and accused nos.1 and 2 sitting on the back seat of the auto rickshaw. When the auto rickshaw started, accused no.3 has taken the said auto rickshaw towards Sargasan. Then PW-14 and the deceased questioned them as to why the driver is taking the Auto Rickshaw towards Sargasan. The driver replied that he has to first drop the other passengers, who are accused nos.1 and 2 and then reach to Dholakuva. 3.2 Accused no.3 has taken the auto rickshaw near to the lake Sargasan, which is an isolated place. After reaching the scene of offence, accused nos. The driver replied that he has to first drop the other passengers, who are accused nos.1 and 2 and then reach to Dholakuva. 3.2 Accused no.3 has taken the auto rickshaw near to the lake Sargasan, which is an isolated place. After reaching the scene of offence, accused nos. 1 to 3 robbed Rs.1,000/- from the deceased and his cell phone by force. When they both PW-14 and the deceased questioned them, they attacked them and it is stated that the accused have pushed the deceased into a lake, which is available there in the said quarrel. PW-14 escaped and ran away from the scene of offence. 3.3 Thereafter, PW-14 after running to some distance from the scene of offence, he informed about the incident to his friend PW-15 and he in turn informed the same to PW-16 and both PW-15 and PW-16 met PW- 14 and all three of them reached the scene of offence. They did not find the deceased at the scene of offence. Therefore, information was given to police and also the fire brigade. The fire station personnel reached the scene of offence and with the help of the fire brigade, they searched in the lake and they found the dead body of the deceased drowned in the said lake and they have taken the said body from the lake. 3.4 On the report lodged by PW-14, a crime was registered by the police under Section 302 , 394, 201 and 114 of the IPC and under Section 135 GUJARAT POLICE ACT against unknown persons. The dead body of the deceased was sent for postmortem examination after completion of the inquest. The Doctor, who conducted autopsy over the dead body of the deceased, opined that cause of death is due to suffocation after he was submerged in the water. 3.5 During the course of investigation while the police were on surveillance duty on 23.09.2011, they found three persons coming in an auto rickshaw bearing registration number GJ-18-AT-7919. They intercepted the auto rickshaw. Accused nos.1 to 3 were found sitting in the auto rickshaw. As it is stated that a similar offence was committed by them, police have arrested them in the presence of the mediators PW-5 and PW-6 and interrogated them. They intercepted the auto rickshaw. Accused nos.1 to 3 were found sitting in the auto rickshaw. As it is stated that a similar offence was committed by them, police have arrested them in the presence of the mediators PW-5 and PW-6 and interrogated them. During the interrogation, they confessed regarding the commission of the present offence also stating that they have pushed the deceased into the lake in the quarrel that took place between them and PW-14 and the deceased on the night of 21.08.2011. So, police arrested them in connection with the present crime also. After completion of the investigation, police filed charge-sheet against against the accused nos.1 to 3 in this case for the offences punishable under sections 302, 394, 201 and 114 of IPC and under Section 135 of the GUJARAT POLICE ACT . 3.6 As accused no.3, who is one of the perpetrators of the crime along with accused no.1 and 2, was a juvenile at that time of commission of the said offence, the case was separated against him and a charge-sheet was filed against him in the Juvenile Court i.e. before the Resident Juvenile Board, Gandhinagar in Sessions Case No.82 of 2011. Therefore, he was separately prosecuted for the said offences. After trial, as per the judgment dated 04.10.2018, he was acquitted of the said offences. A copy of the said judgment is now made available by the learned APP for perusal of this Court as he produced the same on the direction given by this Court. 3.7 In the Court of the Sessions Judge, Gandhinagar, after accused nos.1 and 2 made their appearance in Sessions Court in the present case, charges under Section 302 , 394, 201 and 114 of the IPC and under Section 135 of the GUJARAT POLICE ACT , were framed against them. They denied the said charges and claimed to be tried. 3.8 After considering the evidence on record i.e. the oral evidence of 22 witnesses and also 28 exhibits that are marked by the prosecution to substantiate its case against the accused, the trial court found accused nos.1 and 2 not guilty for the aforesaid offences and thereby, acquitted them of the said charges. Therefore, the present appeal is preferred by the State. 4. When the appeal came up for hearing, we have heard Mr. Bhargav Pandya learned APP for the appellant-State. Therefore, the present appeal is preferred by the State. 4. When the appeal came up for hearing, we have heard Mr. Bhargav Pandya learned APP for the appellant-State. Despite service of notices on response nos.1 and 2 for the reasons best known to them, they did not appear before the Court. As this is an old matter of the year 2013, which is listed under the caption “critically old matters” on the board, we are not inclined to further adjourn the appeal as opportunity was already given to the respondents for their appearance. So, we have decided to peruse the record and evidence and decide the matter on merits as per the material available on record. 5. As can be seen from the evidence on record, the accused are strangers and unknown persons to PW-14. They have no prior acquaintance with each other. PW-14 stated that he and his deceased brother boarded the auto rickshaw, in which accused no.3 was available in it as a driver and accused nos.1 and 2 sitting on backside of the auto rickshaw. The offence took place during night time at an isolated place at the outskirts of the city near a lake. It is not the case of the prosecution that there are any light available at the scene of offence. Therefore, as the assailants are the strangers and unknown persons to PW-14, he did not name the assailants also in the FIR. After the three accused were arrested by the police almost after one month from the date of the offence on 23.09.2011 Test Identification parade was conducted by the police. We have gone through the said Test Identification proceedings conducted by the Deputy Mamlatdar. Though PW-14 has identified accused nos.1 and 2 as assailants, who committed the said offence, a careful perusal of the Test Identification parade shows that it was not conducted as per the mode prescribed under law. When Test Identification parade is conducted to identify the assailants, who are strangers and unknown persons to the victim, it is settled law that the persons of similar age, colour, complexion, height and physique as that of the assailants shall be selected and along with them, the suspects must stand and then the victim has to identify the persons as the assailants. As can be seen from the Test Identification parade proceedings, there is nothing to indicate in it that the persons with whom the suspects were made to stand are of the same age, colour, complexion, height and physique as that of the suspects. Further, PW-14 has seen the accused for the first time during night time in an auto rickshaw and when the alleged offence took place during night time where there were no lights, it is not believable that he could identify the assailants in the Test Identification parade that was conducted almost after a period of one month. Therefore, the said identification of the accused nos.1 and 2 by PW-14 in the Test Identification parade is not only valid, but the same is not believable. 6. It is also relevant to note here that according to the prosecution version, police found all the accused coming in an auto rickshaw when they were on surveillance duty and they arrested them in connection with another crime and at that time, on interrogation that the accused confessed about the commission of the present offense also and thereby, arrested them in the present case also. As per the prosecution case, they were arrested on 23.09.2011 and it is stated that they were arrested in the presence the two mediators examined as PW-5 and PW-6 and it is further stated that it is in their presence that the accused confessed regarding commission of the present offence also. But both the said mediators PW - 5 and PW-6 did not support the case of the prosecution and they denied that the accused in this case were arrested in their presence on 23.09.2011 and that the accused have confessed regarding commission of the present offence during the course of their interrogation. Therefore, the very arrest of the accused and their admission of commission of the present offence before the police is not proved as PW-5 and PW-6 did not support the said version. Therefore, when their very arrest is not proved in this case, it throws any amount of doubt on the Test Identification parade that was conducted in this case. 7. So, after considering entire gamut of evidence on record, we absolutely do not find any semblance of evidence to prove the complicity of accused nos.1 and 2 in commission of the aforesaid offences. 7. So, after considering entire gamut of evidence on record, we absolutely do not find any semblance of evidence to prove the complicity of accused nos.1 and 2 in commission of the aforesaid offences. There is absolutely no incriminating evidence that was adduced against them by the prosecution to prove their involvement in commission of the said offence. Their identity as the culprits of the present offence is not established with acceptable legal evidence beyond any reasonable doubt. It is significant to note here at the stage that the other co-accused, who is accused no.3, was already acquitted by the Juvenile Board in the present offence. 8. Proof beyond reasonable doubt is the standard of proof required under criminal law to establish the guilt of the accused in a criminal case. The said proof must also be strict proof beyond any reasonable doubt. Viewed the case in the light of the said settled principle of law, we have absolutely no hesitation to hold that the present case is not proved against the accused with any such legal evidence beyond reasonable doubt. It is also settled principle of law that the suspicion however strong it may be it will never take place of proof and can never be a substitute for proof in a criminal trial. 9. Therefore, the trial court after considering evidence on record and on proper appreciation of the same, rightly found the accused not guilty of commission of the said offences and acquitted them of the charges levelled against them. After considering said evidence on record and on reappraisal of the same, we are also of the same view that the case is not proved and established against the accused beyond any reasonable doubt. So, the impugned judgment of acquittal of the trial court calls for no interference in this appeal. So, the appeal fails and it is liable to be dismissed. 10. Resultantly, the appeal is dismissed confirming the judgment of the trial court. The bail bonds of the respondents, if any, shall stand discharged. Record and Proceedings and also, the paper book be sent back to the concerned trial court.