The main legal point established in the judgment is that in an appeal against acquittal, 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 one favourable to the accused has been taken by the trial court.

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 21.8.1996 rendered by the learned Additional Sessions Judge, Bhavnagar (Camp at Mahuva) in Sessions Case No. 17 of 1996, wherein trial court has acquitted the respondents accused from the charges levelled against them for the offences punishable under Sections 447, 302 read with Section 34 etc. of Indian Penal Code and Section 135 of the G.P. Act.

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

3. The incident took place on 17.8.1995 for which FIR came to be registered on 18.8.1995 by one Gatubha Ukubha Garasiya, resident of Bordi Taluka before the Talaja Police Station, wherein he has stated that on 17.8.1995 when he was at the house of Lakha Jivan Koli for attending ‘Bhajan’ at 11.30 p.m. at that time Ghanshyamsinh PW-6 came near him and informed him that at his Wadi, someone came and beaten up his brother Bhojubha Ukubha (deceased) and have went away. Therefore, the complainant along with Dhanhubha Banubha, Jarubha Dhirubha, Mithubha Samatsang, Hatubha Jorsang and others ran towards the Wadi of the Gatubha.

4. Upon reaching at Wadi, they show complainant’s elder brother i.e. Bharatbha Ukubha, who is handicapped sitting on the bed and on other bed Bhojubha (deceased) and with the help of light of battery they show injury on the forehead and on the top of eye of Bhojubha caused by sharp weapon and face was with full of blood. Upon asking elder brother Bharatbha Ukabha about the incident, at that time, he said both brothers were sleeping on separate beds and at that time, all of a sudden noise of frightening of bullocks was heard and therefore, Bharatbha Ukabha woke up and saw 3 persons and therefore, he switched on battery and in the light of the battery he saw spear in the hand of Kalu Kana, iron pipe in the hand of Kana Bhola and stick in the hand of another unknown person running away outside the Wadi. Therefore, they all took Bhojubha (deceased) in Talaja Hospital.

5. Mr. Bharatbhai Gohil, P.S.I. recorded a complaint of brother of the deceased and sent yadi to the hospital. The P.S.I. Gohil reached to the hospital where he has made inquest panchnama of the body of the deceased.

6. After registration of the FIR, the Investigating Agency carried out the investigation and recorded the statements of the witnesses and prepared various panchnamas. After investigation was over, the Investigating Officer filed charge-sheet against the respondents 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, Bhavnagar where the case was registered as Sessions Case No. 17 of 1996.

7. During the course of the trial, the prosecution had examined fifteen 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 statements of respondents accused were 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 respondents accused.

8. Heard learned APP Mr. Chintan Dave for the appellant-State and learned advocate Mr.Saurin Shah, for the respondents-accused.

9. Learned APP Mr. Dave, has referred the deposition given PW-1 Gatubhai Ukabhai Exh.15, who is complainant and the brother of the deceased. Learned APP has also placed reliance upon the deposition given by Bharatsinh Ukabha PW-4, Exh.22. The said witness is also brother of the deceased as well as the eye-witness of the incident in question. Thereafter, learned APP has referred the deposition given by PW-3 G