JUDGMENT :

Rajendra M. Sareen, J.

1. Present Criminal Appeal has been preferred by the appellant-original complainant under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 21/01/2019 passed by the learned 7th Additional Sessions Judge, Anjar, Kachchh in Special (Atrocity) Case No. 28 of 2015 (Old Special (Atrocity) Case No. 4 of 2012 acquitting the respondent Nos. 1 and 2-original accused Nos. 1 and 2 from the offence punishable under sections 302 and 114 of Indian Penal Code and under section 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act (hereinafter referred to as “the Atrocity” Act) and under section 135 of the Gujarat Police Act.

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

The complainant lodged the complaint alleging that from 06.10.2011 to 07.10.2011 during the time between 19.30 hours and 1.15 hours, the complainant had gone to the house of his mother situated at village Jatawada, Taluka Rapar, Kachchh after taking dinner and at her mother's house, his brother Karshanbhai, Nanjibhai and Rudo, his three sisters and his mother Laxmiben all were watching television and at about 9 O'clock at night, the complainant and his wife were going from the house of his mother to his house and they had slept at his house along with his children at night. Thereafter at about 1.15 at night, his neighbour Parbatbhai Devshibhai Dalit awaken him and told that there is call from Hakubha Sarpanch and somebody has beaten his brother Deshra and he is serious. Therefore, he had contacted Hakubha Sarpanch from the mobile phone of Parbat and Hakubha Sarpanch informed him that on the road going towards Khodiyar Temple, near Rajput Vas, somebody has beaten on head of his brother Deshra and has caused serious injuries and he is serious and he is sent to Rapar Hospital in 108 Ambulance with Rudabhai Raghabhai and he asked the complainant to reach at the hospital immediately. At that time, police jeep had come and the complainant and his brothers Karshanbhai and Rudo, all three had gone to the hospital at Rapar and there Rudabhai Rajput of his village had met and treatment of his brother was going on and his brother could not speak anything and there was bleeding from the head of his brother and there was serious injuries on his head and after sometime, doctor declared him dead. Hence, the complaint is filed against unknown person with Rapar Police Station vide CR No. I-99/2011 for the offence under section 302 of Indian Penal Code and under section 135 of Gujarat Police Act.

3. On the basis of the said complaint, investigation was started and during the course of the investigation, offence under section 114 of Indian Penal Code and under section 3(2)(5) of the Atrocity Act came to be added and after through investigation, as there was sufficient evidence against the respondent Nos.1 and 2-accused persons, charge-sheet was filed before the learned Judicial Magistrate, First Class, Rapar. 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 Special (Atrocity) Case No. 4 of 2012 which was subsequently renumbered as Special (Atrocity) Case No. 28 of 2015. Thereafter, Charge was framed against the accused for the offence punishable under sections 302 and 114 of Indian Penal Code and under section 3(2)(5) of the Atrocity Act and under section 135 of the Gujarat Police Act. 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 respondent Nos.1 and 2-original accused Nos.1 and 2 for the charges