(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 The State of Gujarat, by way of this Appeal, has challenged the judgment and order dated 31.12.1991, passed by learned Additional Sessions Judge, Jamnagar, in Sessions Case No.64 of 1986, by which the respondents–accused were acquitted from the charges levelled against them under Sections 302 read with Sections 34 and 114 of the Indian Penal Code.
2 The brief facts of the prosecution case as under:
That one Gopalchand Mohanlal Adhiya lodged a complaint with Kalavad Police Station on 3.5.1986 and alleged that the respondents No. 1 and 2 along with others, attacked his brother Lalit near the house of respondent No.1 Bhupatbhai. When he reached at the place near the house of Bhupatbhai, he found the dead body of his brother Lalit and found a knife blow on his chest and having two teeth came out of his mouth and blood had oozed out of the body. Pursuant to the complaint lodged by Gopalchand, the Police Officer started investigation and having found sufficient evidence against the accused persons, submitted a charge sheet in the court of learned Judicial Magistrate, First Class, Kalavad, who in turn committed the case in the Sessions Court at Jamnagar. The charge which was framed at Exhibit-2 was denied by the accused persons and, therefore,the learned Sessions Court proceeded with the trial. After considering the case of the prosecution which was led by examining about 20 witnesses and after examining the documentary evidence produced by the prosecution, the learned Sessions Court has come to the conclusion that the prosecution has failed in bringing the case against the respondents accused as per the charge levelled against them.
3 We have heard learned APP Mr. L.B. Dabhi for the appellant- State of Gujarat. Though learned Advocate Mr. M.H. Bareja has filed his appearance for the respondents, he has not remained present when the appeal was heard finally. However, with the assistance of learned APP, we have gone through the record and proceedings and perused the documentary evidence which are proved by the prosecution as well as the reasons assigned by the Trial Court in acquitting the respondents – accused.
4 The first contention raised by learned APP is with regard to the finding of the Sessions Court that the prosecution failed in establishing the case against the accused persons when the prosecution was successful in establishing that the accused Nos. 1 and 2 have failed in explaining the injuries received on their persons. He submitted that it is proved through the deposition of Sajubha Amarsinh Gohil, PW-1, Exhibit-9, who had examined the two accused and found that the accused No.1 has received incised wound on left hand, CLW on left hand and abrasion on right right scapular region and accused No. 2 has received CLW on left glutaeal region and, therefore, even in absence of any eye witness, the prosecution could establish the involvement of the accused persons in the incident in which the deceased Lalitbhai was done to death.
5 We have gone through the deposition of Gopalchand Mohanbhai Adhiya, the complainant, who has been examined as PW-3 at Exhibit-16. It reveals that he is not an eye witness to the incident. He received information from some persons about the involvement of the accused persons in the incident when he reached near the house of Bhupatbhai where his brother Lalit was lying. He is not clear that who informed about the involvement of the accused No. 1 and 2 in the incident and he is also not aware that who gave the knife blow to his deceased brother. Nothing comes out in the deposition of this witness. He has not explained the incident in detail even though he was informed by some persons who posed themselves as eye witnesses to the incident. Salim Amadbhai, PW-4, Exhibit-18; Popatlal Mavji, PW-5, Exhibit-19 and Devkunvarba Bahadursinh, PW-7, Exhibit-21, who were eye witnesses as per the prosecution, have not supported the case and shown their ignorance about the incident having been witnessed by them.
6 Panch witnesses in whose presence the clothes of the accused were discovered have not supported the prosecution.
7 Now considering the injuries received by respondents No. 1 and 2 are concerned, the learned Sessions Judge, in our opinion, was right in observing that the prosecution has failed in bringing sufficient evidence, so that it can be established that the accused persons received the injuries in the scuffle, which had taken place between the accused and the deceased as alleged by the prosecution. There is no witness, who says that the accused persons sustained injury in this scuffle and, therefore, the circumstance which the learned APP tries to connect with the accused persons, cannot be accepted.
8 Now considering the entire case, it comes on record that there is no eye witness to the incident. The clothes of the accused, having bloodstains, were not proved through panchas and there is no other circumstance which would lead the court to conclude that the assailants were only the accused persons. We are of the opinion that the learned Trial Judge was right in acquitting the accused persons from the charges levelled against them.
9 It is well settled principle of law that the appellate court shall be reluctant to interfere with such judgment of acquittal unless the court found it contrary to evidence or palpably erroneous or the view which has been taken by the Trial Court, could not have been taken by the court of competent jurisdiction while dealing with the appeal against acquittal, the court keeps in view the position that the presumption of innocence in favour of the accused, has been fortified for its acquittal. The golden rule is that the court is obliged and may not abjure its duty to prevent miscarriage of justice where interference is imperative and the ends of justice was required and it is essential to appease the judicial conscience.
10 In view of what is stated here-in-above, we do not find any infirmity with the reasons assigned by the Trial Court in acquitting the respondents–accused from the charges levelled against them. Hence, the appeal stands dismissed. The impugned judgment and order dated 31.12.1991 passed by the Additional Sessions Judge, Jamnagar, in Sessions Case No. 64 of 1986 is confirmed.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair