IMPORTANT POINT
The central legal point established in the judgment is the requirement to prove guilt beyond reasonable doubt, the duty of the Investigating Officer to gather crucial evidence, and the need for corroborative evidence to support eye-witness testimony.

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 judgment and order dated 21.03.1998 passed in Sessions Case No.134 of 1991 by the Additional Sessions Judge, Kheda at Nadiad.

2. The State is in Appeal on the ground that evidence recorded during the course of trial was sufficient to establish the case against the respondent-accused and therefore, an error is committed by the Sessions Court in giving benefit of doubt to the respondent-accused and acquitting him of the charge.

3. The FIR came to be registered in connection with the incident, which took place midnight between 13-11-1990 and 14-11-1990, where allegedly respondent-accused assaulted the deceased with stick on the vital part of the body resulting in serious injuries and subsequent death of the deceased.

4. The respondent-accused is second husband of witness- complainant; Gangaben and deceased is father. According to the prosecution, on account of some matrimonial issues, Gangaben was staying with her father against wishes of the husband and therefore, when the husband came to take her back, the father having refused, assault has taken place. Initially, FIR came to be registered for offence under Section-323, 325 of IPC and under Section-135 of B.P. Act being C.R. No.209 of 1990 registered with Petlad Town Police Station and thereafter, on account of expiry of deceased during the treatment, Report of adding Section-302 appears to have been made and therefore, the respondent-accused was chargesheeted for offence under Section-302 of IPC and Section-135 of B.P. Act.

5. Learned Additional Public Prosecutor has contested the impugned judgment and order by submitting that the Court has not correctly appreciated the evidence of eye-witness; Gangaben; daughter of the deceased, where in the evidence in chief examination, she has deposed that the accused had assaulted her father (deceased) with stick. She has also deposed that for demanding some money on behalf of this witness, he had given blow with the stick.

5.1 It is submitted that if the clear evidence of eye-witness whose presence at the place of offence cannot be doubted, the Sessions Court ought to have given sufficient weightage to the evidence of the eyewitness.

5.2 Learned APP has thereafter drawn attention of this Court to the Discovery Panchnama, which according to him, would attract the provision of Section-27 of Indian Evidence Act and therefore, as authorship of concealment is revealed of the weapon used in the crime, the same can be treated as substantial evidence. It is submitted that said panchnama is established by the evidence of the Investigating Officer, though the panch-witnesses have not supported the execution of discovery panchnama.

5.3 Learned APP has further submitted that if the discovery panchnama is perused, then it is also coming out that the weapon used in the offence contain blood-stains and if two incidents are viewed together that is to say the panchnama of scene of offence and the discovery panchnama indicating blood-stain, then prosecution has successfully established the usage of stick in carrying out the assault.

6. As against this, learned Advocate appearing for the respondent-accused in support of the acquittal, has submitted that the prosecution has failed to establish the case beyond reasonable doubt particularly, though the prosecution has identified witness; Gangaben as eye-witness. From her own deposition, it is not coming out as if she has actually witness the incident, but it is coming out that she was in fact inside the the room and she heard the shouts of her husband that somebody is assaulting her father.

6.1 Moreover, this witness has also not supported the incident as is projected by the prosecution as in her cross-examination, she has also admitted that at the first instant, when she related incident to another witness; Jayantibhai, she had told him that someone had assaulted her fath