The appellate court cannot substitute its own view in an acquittal appeal unless the findings of the trial court are demonstrably unsustainable.

JUDGMENT :

SANDEEP N. BHATT, J.

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 07.11.1998 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case No.152 of 1996 for the offences under Sections 148 & 149 read with Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act, the applicant – State of Gujarat has preferred this appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 (“the Code” for short) inter alia challenging the judgment and order of acquittal in favour of the respondents accused.

2. The case of the prosecution is as under :

2.1 On 23.06.1996 at about 2:00 a.m., one Atul Nathwani, who happened to be the friend of Mahesh – deceased, has come to the house of the complainant and told that, someone has given knife blow to Mahesh and he was lying on the road near Musafarkhana in bleeding condition. Therefore, the complainant – Sureshkumar Durlabhji Ghutla, one Manoj and his father immediately rushed there and taken the deceased to the hospital in rickshaw, where the Doctor has declared him – Mahesh dead. Thereafter, the complainant lodged the complaint with regard to the incident before the Junagadh City Police Station, which was registered for the offences under Sections 147, 148, 149 and 114 read with Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondents accused, charge-sheet came to be filed in the Court of learned Chief Judicial Magistrate, Junagadh. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, learned Sessions Judge framed charge at Exh.1 against the respondents accused for the aforesaid offence. The respondents accused pleaded not guilty and claimed to be tried

5. In order to bring home charge, the prosecution has examined 23 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 5 of the impugned judgment and order.

6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondents accused of the offences, for which they were tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned APP Ms. Chetna Shah appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing.

8.1 Now, before starting appreciation of evidence, it is relevant to note that accused No.1 – Hira @ Hirko Amrabhai has expired on 23.04.2004 during the pendency of the present criminal appeal as per communication received from the Sessions Court, Junagadh dated 29.03.2022. Hence, the present criminal appeal stands abated qua respondent No.1 (original accused No.1) - Hira @ Hirko Amrabhai. Therefore, we are discussing the evidence qua respondent Nos.2 to 4 – the original accused Nos.3 to 5 in the present appeal.

8.2 The charge is framed by the Additional Sessions Judge, Junagadh at Exh.2 against the accused Nos.3 to 5 at Exh.2 about causing the death of Mahesh Durlabhji