The need for consistent and credible witness testimonies to establish guilt, and the limited scope of interference by the appellate court in case of acquittal.

JUDGMENT :

A.Y. KOGJE, J.

1. The present appeal is preferred by the State against the judgment and order of acquittal dated 27.12.1995 passed in Sessions Case No.20 of 1993 by the Additional Sessions Judge, Amreli. By the impugned judgment and order, the respondent-accused were acquitted of the offences under Sections 302, 323, 324 & 114 of the Indian Penal Code and Section 135 of the Bombay Police Act.

2. The offence arose out of an FIR registered in connection with an incident which apparently occurred on account of the alleged assault by the respondent-accused on account of dispute of removal of garbage.

3. It appears that the FIR came to be registered in connection with an incident dated 03.12.1992, wherein it is alleged that 6(six) persons were assaulted by using farm instrument (Khampali) & sticks of which the respondent-accused Lalabhai Savabhai Koli was attributed with Khapli and assault on the deceased – Rajiben. It would be pertinent to note that said Lalabhai Savabhai Koli has expired pending the appeal and accordingly, vide order dated 29.09.2022, the appeal qua him had abated. Apart from Lalabhai Savabhai Koli, 3 (Three) other accused were attributed with sticks and had inflicted injuries on the other injured witnesses.

4. The charge came to be framed vide Exh.1, wherein the respondents were charged for the offence under Sections 323, 324, 302, 504 r/w 114 of the Indian Penal Code. On account of assault being carried out by the farm instrument (Khampali), the charge of Section 135 of the Bombay Police Act also framed.

5. The gist of the charge indicates that on 03.12.1992, at about 20.00 hours, at Village: Harmadiya, Tal: Kodinar, Dist:Amreli, near residential area of both the complainant as well as accused with a common intention carried out an assault by using khapali & sticks. The accused no.1 (since deceased) has been attributed to assault the deceased with khapali on vital part of the body and respondent nos.2 to 4 were attributed with assault by stick on head as well as torso & legs of the injured witnesses. Such assault was made indiscriminately jointly upon the deceased as well as the other witnesses.

6. Learned APP has taken this Court through the evidence of the Doctor, who was examined as P.W.1 at Exh.12, who has given in detail the nature of injuries sustained by the deceased as well as injuries sustained by 5 (five) other persons viz. Benaben Govindbhai, Chinabhai & Chhanabhai, Hamabhai Rambhai (informant), Dhirubhai Hamabhai and Chinabhai Hamabhai. From the evidence of 6 witnesses clearly the cause of death is attributed to the assault carried out upon the deceased-Rajiben and in his evidence has also stated that the nature of injuries sustained by the deceased could be caused by using muddamal article - farm instrument (Khampali). The specific injury which turned out to be fatal was Injury No.3 mentioned in his evidence in chief, which was clearly attributable to the aforesaid farm instrument (Khampali).

6.1 Learned APP, therefore, submitted that the prosecution was successful in establishing the death of deceased-Rajiben was on account of the assault and was homicidal death.

6.2 Learned APP has, thereafter, taken this Court to the evidence of Benaben Govindbhai, who is an injured eye witness examined as P.W.6 at Exh.31. It is submitted that upon reading the evidence in chief that the incident took place near their house, and therefore, her presence was natural and in fact, she was also assaulted by one of the accused – Babubhai Savabhai, who caused injury on her thigh by inflicting stick, and therefore, the evidence of this witness is credible enough.

6.3 Learned APP, thereafter, took this Court to the evidence of Ratanben Kalabhai, who was examined as P.W.7 at Exh.32, who also happens to be resident of that vicinity and had witnessed the incident. While reading the evidence in chief, it is submitted that clearly the manner in which the assault took place has been narrated by this witness and the sa