JUDGMENT :

RAJENDRA M. SAREEN, J.

1. Present Criminal Appeal is filed by the appellant – State of Gujarat being aggrieved by the judgment and order dated 24/03/1999 passed by the learned Sessions Judge, Amreli in Sessions Case No.49 of 1995 whereby the learned Judge has acquitted the accused/respondent from the offence punishable under sections 302, 397 and 451 of Indian Penal Code and under section 135 of Bombay Police Act.

2. Brief case of the prosecution is that on 12/8/1994 at 17.00 hours at Village Hemala, Taluka, taluka Jafarabad, District Amreli, the accused Govind Madhu Koli to fulfill his intention to kill the son of the complainant Madhubhai Rambhai Koli, to rob the clothes etc., enter into the house of the complainant and caused injuries to the son of the complainant named Munna, due to which he succumbed to the injury and robbed the ornaments and clothes worth Rs.4970/- from the house of the complainant. Therefore, the complaint being CR No.I-56 of 1994 came to be registered on 12/8/1994 for the aforesaid offences.

3. Thereafter, the investigation was set in motion and the investigating officer recorded statements of witnesses, panchnama of the scene of offence and other panchnamas were prepared, got postmortem of the deceased done, muddamal was sent to the FSL, and as there was sufficient against the accused, chargesheet was filed in the court of learned Judicial Magistrate, First Class. As the case was triable by the Sessions Court, the learned Magistrate having no jurisdiction to try the case, the case was committed to the Sessions Court and was numbered as Sessions Case No.49 of 1995.

4. The learned Sessions Judge before whom the case was committed, framed the Charge. The accused denied the contents of the charge. As a result, trial was conducted by the Sessions Judge. Further Statement of the accused under section 313 of the Code of Criminal Procedure was recorded in which accused/respondent denied the charges and prayed for trial. Upon recording of the Further Statement of the accused, arguments were heard by the learned Sessions Judge and thereafter trial was resulted into acquittal of the accused from the charges levelled against him, as a result of which the present appeal is filed by the appellant – State of Gujarat.

5. Mr.H.K. Patel, learned APP relying upon the evidence of Jahiben has vehemently argued that Jahiben was the first person who enter into the house hearing hue and cry of Tikuben and caught hold of the accused and able to see the respondent/accused and Tikuben had also witnessed the accused running away. As such both have identified the accused in the court and they have also identified the respondent/accused in the T.I. Parade. This substantial piece of evidence of Jahiben and Tikuben coupled with T.I. Parade conducted by the executive Magistrate has not been believed by the learned Sessions Judge.

6. It is also submitted by the learned APP that the witness Kalubhai Mohanbhai, Kanabhai and other villagers had gone after the respondent/accused and it was found that the respondent was in the house of Pragjibhai Dadubhai in village Ebhalvad and though the witness had chance to see the respondent/accused from near, he has identified him in the court also. This evidence is also not believed by the learned Sessions Judge, which is error apparent on record.

7. The learned APP has further submitted that the judgment and order passed by the learned Sessions Judge is against the evidence on record and provision of law. The learned Sessions Judge has not appreciated and accepted the medical evidence which is corroborated by the version of the eye witness. The learned Sessions Judge has also not appreciated the evidence of the investigating officer in its true and correct perspective. It is further submitted that Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. It is further submitted that the Sessions Judge has erred in acquitting the resp