The principle of double presumption in favor of the accused in case of acquittal and the need for the prosecution to prove the offence beyond reasonable doubt.

JUDGMENT :

A.Y. KOGJE, J.

1. Present Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, 1973, against the acquittal recorded by the judgment and order dated 04.11.1996 passed in Sessions Case No.55 of 1993 by the Additional Sessions Judge, Amreli. By which three respondents-accused have been acquitted for the offences under Sections-302, 504, 114 and under Section-326 read with 114 of the Indian Penal Code.

2. The appeal came to be admitted by order dated 17-07-1997.

3. This is the case, which arose out of an incident, which took place on 08-03-1993, where allegedly three respondents-accused aged between 18 years to 21 years, had carried out assault on one Rajeshgiri, Dipakgiri and Hashmukhbhai and the deceased; Girishbhai.

4. It is the case where one of the injured witness doubting that the accused No.3; Pravin @ Punjabhai Rathod had taken the wristwatch, while they were together at the festival of ‘Holi’ and while removing coconut from the ‘Holi’ fire, wrist-watch of the witness had slipped out of his hand and perhaps taken by the accused No.3; Pravin, but did not return it to the witness. As a result, witness complained to his elder brothers, who are injured witnesses and therefore, all the injured witnesses proceeded to the residence of accused No.3; Pravin, where the co-accused (brothers) were also present and the scuffle ensued. During this, it is alleged that accused No.3; Pravin took out knife and inflicted injuries on the deceased, resulting into his death.

5. Learned Additional Public Prosecutor has submitted that an error is committed by the Sessions Court in acquitting the respondents-accused, as the Court has erroneously not believed the evidence of witnesses, who are not only the eye-witnesses, but are injured eyewitnesses. It is submitted that each of this witnesses have clearly deposed the manner in which, the assault was carried out and have also given role to each of the accused in the assault. There was no reason to disbelieve the evidence of this eye-witnesses.

6. It is submitted that version of this eye-witnesses was corroborated by the Medical evidence in as much as the treating Doctor / Postmortem performing Doctor have clearly indicated that the injuries suffered by the deceased as well as witnesses and have deposed that such injury could be caused by the weapons attributed to the accused and especially, injuries caused to the deceased was possible by the knife and therefore, the State was able to establish beyond doubt that the cause of death was homicidal.

7. Learned Additional Public Prosecutor has further submitted that even from the defense taken by the respondents-accused that the accused had acted in self defense will itself go against the respondents-accused, as their presence in the scene of offence and participation was in itself established.

8. As against this, learned Advocate appearing for the respondents-accused has submitted that the respondents-accused have been acquitted way back in the year 1993 and therefore, after belated period, such acquittal may not be converted into conviction. More particularly when the Sessions Court has attributed sufficient reasons and the prosecution has failed to make out any perversity in the judgment and order of the Sessions Court. Till such time, acquittal may not be disturbed.

9. It is submitted that though the incident has taken place resulting into death of a person that in itself is not sufficient for conviction under Section-302, particularly, when even as per the case of the prosecution, the complainant side were aggressor, who had come to the residence of the respondents-accused. Therefore, there was no element of premeditation or mensria. Therefore, the benefit, which is given to the respondents-accused, judgment of acquittal, may not be disturbed.

10.Having considered the submissions made and having perused the documents on record, it appears that the respondent-accused No.1; Rameshbhai Punjabhai Rathod aged 21 years, re