JUDGMENT :

M.R. Shah, J.

Facts of this case illustrate a disquieting feature as to how the trial Court has committed a grave miscarriage of justice in recording the acquittal of the respondents - accused by playing in the hands of the witnesses who were admittedly relatives of the respondents - accused.

2. As observed by the Hon'ble Supreme Court in the case of Zahira Habibulla Sheikh and Anr. v. State of Gujarat and Ors. reported in (2004) 4 SCC 158 and in the case of Zahira Habibulla Sheikh (5) and Anr. v. State of Gujarat and Ors. reported in (2006) 3 SCC 374 A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to met out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine, by becoming a participant in the trial evincing intelligence, active interest and eliciting all relevant materials necessary for reaching the correct conclusions, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to the proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators'. The Hon'ble Supreme Court has further observed 'the Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of law'. It is further observed that "due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as to court of law in the future as in the case before it." It is further observed by the Hon'ble Supreme Court that "Courts have to ensure that the accused persons are punished. A criminal trial should not be reduced to be mock trials or shadow-boxing or fixed trials."

3. Present Criminal Appeal being Criminal Appeal No.2289 of 2005 is filed by the State of Gujarat under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgement and order dated 04.03.2005 passed by the learned Presiding Officer, 3rd Fast Track Court, Nadiad in Sessions Case No.260 of 2002 acquitting the respondents herein - original accused for the offences punishable under Sections 302, 307, 323, 504 read with Section 114 of the Indian Penal Code.

4. Criminal Revision Application No.55 of 2008 is registered pursuant to the order dated 17.12.2007 passed by this Bench wherein respondent Nos.2 and 3 in the said Revision Application i.e. PW-1 - Takhatsinh Bhikabhai Mahida and PW-2 - Chhatrasinh Bhikabhai Mahida were directed to show cause as to why they should not be punished for perjury and giving false evidence on oath and why appropriate proceedings against them should not be initiated considering provisions of Section 344 of the Cr.P.C. which permits the Court to try the accused / witnesses who have given false evidence on oath summarily, aforesaid two witnesses and the respondents are tried summarily and are given reasonable opportunity as contemplated under Section 344 of the Cr.P.C.

5. Briefly stated the facts are as follows:

Original c