A.J. Shastri, J.

1. The State has filed this appeal against the judgment and order acquittal dated 17th October, 2005 passed by the learned Presiding Officer, Fast Track Court No. 2, Valsad, in Sessions Case No. 31 of 2004.

2. The present case is encircled around the fact that one Manoj Shitalprasad Rajput, a person originally belonging to Uttar Pradesh, came to Umargam since about eight years and was staying with his parents. The complainant Manoj Shitalprasad used to ply tempo and out of the earnings was feeding his family. On 30.11.2003 at Railway Station Road, one Mr. Jayeshbhai Patel had arranged 'Satyanarayan pooja' where the complainant Manoj Shitalprasad went along with his friends and at about 7.30 p.m. when 'pooja' ceremony got over, they took 'prasad' and thereafter met several persons over there. Amongst them, there were persons named Ketan, who was working in Umargam factory, Kushal, who was residing at Daheri and was working in Boiler factory and Jay @ Guddu, who was residing at Dalwad. Kushal, who originally belonged to Bombay and running a Gymkhana outside the Swapnalok Society came with his brother-Tanaji. It is further asserted by the complainant that Tanaji informed Kushal that accused Nos. 1 and 2 were headstrong persons and were refusing their customers to park their vehicle who are coming daily in Gymkhana and therefore, Tanaji requested his friend to persuade these accused to allow their clients to park the vehicle and therefore, all four i.e. complainant, Kushal, Ketan and Jay went to Gymkhana where three Muslim boys, accused No. 1 and his brother Naresh Kodi were present. At that time, issue regarding parking of vehicle was deliberated and suddenly Salim and Mohmad got enraged and started quarreling by using rough language resultantly one Surya Chacha, who was residing near Janakpuri came there along with other three persons and requested these persons not to quarrel and leave the place. While leaving the place, Salim gave threat that they would take revenge but the complainant and other persons did not seriously notice such threat and parked the motor cycle near the flat of Surya Chacha and they went to the shop of Chiku Kota at about 8 P.m. The complainant further asserted that at about 10 p.m., while he was going on his bullet motor cycle and reached to the ground floor of Swapnalok Society, Surya Chacha was taking his food where the complainant did not take the food and thereafter left the place. Since there was a desire to smoke, he was smoking at about 10.45 p.m. and at that time, on southern side, some 4-5 persons were talking. At that time, Salim and his brother Mohmed, Naresh and three other Muslim boys came with iron rod, sticks, knife and sword and they proceeded to the place of Surya Chacha and assaulted him with knife and sword. They also inflicted him pipe blows and stick blows. The persons standing nearby the Society and vicinity ran away from the scene of offence and Surya Chacha shouted for help to intercept and to save Surya Chacha. The present complainant has specifically asserted in the complaint that Muslim boys, who came there with iron pipes, attacked and caused serious injuries to Surya Chacha who ultimately succumbed to the injuries. On account of this incident, a complaint came to be filed before Umargam Police Station which was registered as C.R. No. I-281 of 2003 for the offence punishable under sections 143, 147, 149 and 302 of IPC.

2.1 This complaint which came to be lodged at Umargam Police Station was investigated by Investigating Officer, who collected all relevant materials, drew panchnamas which were necessary and recorded statements of witnesses and accordingly, after taking every step required for investigation and upon finding a prima facie material against the accused, a charge sheet came to be filed.

2.2 Since the case was triable by Sessions Court,