The appellate court should not disturb the findings of acquittal recorded by the trial court if two reasonable conclusions are possible on the basis of the evidence on record, and the trial court's findings are not perverse, contrary to the material on record, palpably wrong, manifestly erroneous, or demonstrably unsustainable.

JUDGMENT :

VIPUL M. PANCHOLI, J.

1. The appellant-State has preferred present appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short) challenging the judgment and order of acquittal dated 12.9.1996 rendered by the learned Additional City Sessions Judge, Court No. 13, Ahmedabad in Sessions Case No. 129 of 1992, whereby trial court has acquitted the respondent accused from the charges levelled against him for the offences punishable under Section 302 of Indian Penal Code.

2. The brief case of the prosecution is as under:

2.1 On 24.8.1991 at around 8.00 a.m. in the morning, the respondent accused was doing fencing work near the house of Vijaymal (deceased) and therefore, deceased informed accused to stop the fencing work. This refusal converted into exchange of words between the respondent accused and the deceased and thereafter, the respondent accused attacked on Vijaymal (deceased) with a spade and had inflicted the blow on the head of Vijaymal (deceased). The said attack resulted into the death of Vijaymal.

3. One Ganesh Yadav filed a complaint before the Sardar Nagar Police Station, wherein he has stated that one Ramnath informed him at about 10.00 a.m. that Vijaymal had been attacked by one Dalpat and he was lying near his house in bleeding condition. Therefore, the said Ganesh Yadav reached to the spot where Vijaymal was lying in bleeding condition. He, therefore, took injured Vijaymal to Police Station, whereas, P.S.I. Mr. Oza recorded a complaint of Ganesh Yadav and the injured was sent to the hospital with the yadi. It is the case of the prosecution that as injured was in unconscious condition, his dying declaration could not be recorded and about 20 hours, the injured has succumbed to the injuries.

4. After registration of the FIR, the Investigating Agency carried out the investigation and recorded the statement of the witnesses and prepared various panchnamas. After investigation was over the Investigating Officer filed charge-sheet against the respondent accused before the concerned Magistrate Court. However, the case was exclusively triable by the Court of Sessions, the concerned Magistrate committed the case to the Sessions Court, Ahmedabad where the case was registered as Sessions Case No. 129 of 1992.

5. During the course of the trial, the prosecution had examined seven witnesses and produced documentary evidence, as observed in paragraph No. 6 of the impugned judgment and order. After the prosecution's evidence was over, further statement of accused was recorded under Section 313 of the Code. Thereafter, the trial court, after considering the oral as well documentary evidence led by the prosecution, passed impugned judgment and order of acquittal and therefore, the State of Gujarat has preferred present appeal against acquittal of the respondent accused.

6. Heard learned APP Mr. Chintan Dave for the appellant-State and learned advocate Mr. Jitendra M. Buddhbhatti, for the respondent-accused.

7. Learned APP Mr. Dave, has mainly relied upon the deposition given by two eye-witnesses i.e. PW-2 Jay Prakash Yadav Exh.9 and PW-6 Mamtaben Ramnath Siligram Exh.24.

7.1. Learned APP submitted that both the aforesaid eyewitnesses have fully supported the case of the prosecution. He further submitted that both the eye-witnesses have specifically narrated in their depositions given before the Court, the manner in which the incident took place and the weapon used by the respondent accused, while committing the crime. It is further submitted that the weapon ‘spade’ was discovered at the instance of the respondent accused and the panch witness of discovery panchnama has also supported the case of the prosecution, inspite of that the trial court has wrongly discarded the deposition given by the said two eye witnesses as well as the panch witness.

7.2 At this stage, learned APP has also referred the deposition given by PW-1 Dr. Pratik Patel Exh.7, who has conducted the postmortem of t