Point of Law: While dealing with judgment of acquittal, unless reasoning by learned trial Court is found to be perverse, acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if view taken by learned trial Court is possible on evidence, High Court should stay its hands and not interfere in matter in belief that if it had been trial Court, it might have taken a different view.

JUDGMENT :

Rajendra M. Sareen, J.

1. This Appeal is filed by the appellant – State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 10.05.1994 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No.76 of 1993 acquitting the respondents – original accused Nos.1 to 4 from the offence punishable under sections 302, 323, 326, 34 and 114 of Indian Penal Code and 135 of Bombay Police Act.

2. The factual matrix as narrated by the prosecution case stands as under:

2.1. The complainant lodged the complaint that on 19/2/1993 stating that on 19/2/1993 at around 8 O’clock in the morning in the sim of Balochpura falling under the jurisdiction of Shihori Police Station, all the four accused, with a view to fulfill their common intention to kill the deceased – Amthaji came to the place of incident and accused No.1 Lakhaji was having Vasi (Dhariya) in his hands and accused Nos.2, 3 and 4 were having stick in their hands and accused No.1 inflicted Vasi (Dhariya) blow on the head of deceased Amthaji and hence Amthaji had fallen down and at that time accused Nos.2, 3 and 4 had beaten the Amthaji with kick and fist blows and also beaten Amthaji on the stomach of Amthaji and thereby caused fatal injuries to the Amthaji.

It is also alleged that on the aforesaid date, place and time, accused No.1 inflicted Vasi blow on the Meruji Navaji Thakor on his left eye and in the said act accused Nos.2 to 4 helped the accused No.1. It is also alleged that the accused No.2 had inflicted stick blow to the Naviben on the left side of her body and in the said act accused Nos.2 to 4 helped the accused No.1.

2.2. On the basis of the said complaint, investigation was started and after through investigation, as there was sufficient evidence against the respondents – accused persons, charge-sheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Additional Sessions Judge, which has been numbered as Sessions Case No.76 of 1993. Thereafter, Charge was framed against the accused for the offence punishable under sections 302, 323, 326, 34 and 114 of Indian Penal Code. The accused persons pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. At the conclusion of the trial, the learned Additional Sessions Judge was pleased to acquit the accused Nos.2 to 4 for the charges levelled against them and convicted the accused No.1 for the offence under section 304 Part-II of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs.500/- and in default, to undergo further simple imprisonment for three months and acquitted the accused No.1 from the other offences levelled against him.

Hence, the appellant – State of Gujarat has preferred the present Appeal challenging the judgement and order of acquittal.

3. Ms. C.M. Shah, learned APP for the appellant State has vehemently argued that the Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence adduced by the prosecution. She has further submitted that the Sessions Judge has erred in acquitting the respondents – accused from the charges levelled against them. She has further argued that the prosecution has proved that the respondents have committed offence under sections 302, 323, 326, 34 and 114 of Indian Penal Code and under section 135 of the Bombay Police Act. She has further argued that Sessions Judge has acquitted the respondents accused merely on some minor contradictions and omissions in the evidence of the witnesses. She has