JUDGMENT :

Rajendra M.Sareen, J.

1. Present Criminal Appeal has been preferred by the appellant - State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 20/03/1998 passed by the learned Additional Sessions Judge, Porbandar in Sessions Case No.32 of 1993 acquitting the respondents - original accused Nos.1 to 9 - original accused Nos.1 to 9 from the offence punishable under sections 307, 147, 148, 149, 353 and 504 of Indian Penal Code and under section 25(1B) of the Arms Act and under section 135 of the Gujarat Police Act.

2. Facts of the case, in brief, are as under :-

On 06.02.1993, the police party headed by PSI, Shri V.R.Aagath was in a police matador passing near Gosabara bridge near Mokar village of Madhavpur Taluka of Porbandar district returning from village Balej where the police party had gone for investigation of offence under section 302 of Indian Penal Code. Late at night about 11.30 they saw that three trucks were coming from the opposite side. The lead truck had its lights on whereas the other two trucks did not have lights on. The police got suspicious. They signalled to the first truck by flashing their lights to stop. The first truck did not stop immediately. Instead, the vehicle crossed the police matador and stopped a little further ahead. The other two trucks, in the meantime, had stopped before the police vehicle. From the lead truck, about 9 or 10 people got down and stood close to their truck. 4 or 5 people got down from the other two trucks and joined the others who had got down from the lead truck. Out of the group, Mamumiya Panjumiya @ Umarmiya, accused No.1, against whom a separate chargesheet was filed, was carrying pistol and as per the case of the prosecution, accused No.1 and 9 were carrying knife. Mamumiya Panjumiya fired thrice from his pistol in the direction where the police party was standing. In retaliation, PSI Shri Aagath fired from his service revolver. Initially, he fired in the air but even then Mamumiya Panjumiya fired two more times. The PSI aimed at the mob and fired twice. In the commotion that ensued, some five people got into the two trucks behind and managed to escape. Others ran towards the road side bushes leaving the first truck behind. The police managed to catch accused Nos.1 and 2 at the scene of offence. However, other seven accused were left. Against the accused Nos.1 and 2, Sessions Case No.32/993 was tried and against respondent Nos.8 and 9 Sessions Case No.1/1994. The learned Additional Sessions Judge, Porbandar by judgement dated 20/3/1998 acquitted all the accused, against which the present appeal is filed by the State.

3. The Sessions Case was filed, which was committed to the Sessions Court under Section 209 of the Code of Criminal Procedure. The trial was commenced. Charge was framed for the offence under sections 307, 147, 148, 149, 353 and 504 of the Indian Penal Code and under section 25(1)(B) of the Arms Act and under section 135 of the Gujarat Police Act.

4. But what was the motive of the respondents accused or other persons against whom the other cases are filed for the occurrence of this incident, is not clarified.

5. It is the case of the prosecution that when the trucks were intercepted and 10 persons were boarded down from the truck wherein accused No.1 Mamumiya was having fire arm and respondent Nos.1 and 9 were having knives. No evidence has been brought on record that any of the other accused persons were having any arm.

6. It is also the case of the prosecution that firing started and Mamumiya Panjumiya opened fire and in retaliation, PSI Aagath fired from his service revolver. Witnesses Manubhai Shamjibhai and Rasikbhai Babubhai, who were members of the police party, have deposed that in retaliation PSI Agath opened fire in air and during that time, there may be cross firing also towards the vehicle in which the police party was returning and at the same time, there were cross firing towards the accused