The court upheld the principle that an acquittal should not be overturned without compelling evidence, emphasizing the prosecution's burden of proof.

ORDER :

UMESH A. TRIVEDI, J.

1. This is an application filed under Sub-section (3) of Section 378 of the Code of Criminal Procedure, 1973 praying for leave to appeal against the judgment and order of acquittal recorded by learned 6th Additional Sessions Judge, Banaskantha at Deesa, dated 25.10.2023, in Sessions Case No.67 of 2021, whereby respondent-accused came to be acquitted of the charge levelled against him.

2. Prosecution case is, in brief, as under:-

2.1 On 29.3.2021 at about 9.30 p.m., just opposite Bank of Baroda, on a public road, respondent-accused met deceased and demanded his dues. At the same time, respondent-accused was also abusing the deceased. When the deceased tried to prevent him from using abusive language, he gave pipe blow on the head of the deceased. First informant-Hiteshbhai Ambaji Solanki, who happens to be the brother of the deceased, stated in his information that aforesaid facts came to be informed by his deceased brother on asking by him. Respondent-accused was working as a Conductor in his goods vehicle. The aforesaid disclosure was made by the deceased in presence of not only the first informant, according to the case of the prosecution, his father, sister-in-law and neighbours were present there. After he was brought to home, his deceased brother was treated with turmeric powder filling it on the wound over the head. However, after sometime, there was chest pain. First informant along with his cousin took the deceased in a rickshaw for the purpose of treatment. The doctor present in the hospital declared him ‘brought dead’. Therefore, dead-body was sent for the purpose of postmortem in the hospital. As per the case of the prosecution, after postmortem, dead-body was entrusted to the first informant and his family members and they performed cremation thereafter. After cremation, all came back home and they were informed about the incident. However, the persons, who attended cremation, advised to give complaint against the accused and, therefore, on next date to the incident i.e. on 30.3.2021 at about 3 p.m., an FIR came to be registered.

2.2 Pursuant to the registration of FIR, investigation was carried out and on conclusion of it, a charge-sheet came to be filed before the competent Court. Since learned Magistrate does not have jurisdiction to try the accused for the offence alleged against him, he committed it to the Court of Sessions that is how the case was posted for the purpose of trial before the learned Judge. After recording evidence on behalf of the prosecution and hearing the parties, learned Judge has passed aforesaid judgment and order acquitting the respondent-accused of the charge levelled against him.

3. Ms.Vrunda Shah, learned APP vehemently submitted that though eye witnesses may have turned hostile, when they were cross-examined by the learned APP, they have denied certain facts to be not stated in the police statement. However, drawing the attention of the Court to the deposition of the investigating officer, it is submitted that he has very categorically deposed to before the Court that such facts were stated before the police. Therefore, according to her, deposition of investigating officer should have been believed read with the evidence of other witnesses brought on record by the prosecution. She has further submitted that since the deceased had only two injuries over head, that too, lacerated wound, it may have caused with weapon of offence but it might not have stained with blood as there was no bleeding out of the wound. Therefore if no blood stains are found over the weapon of offence i.e. pipe, it cannot be a ground to record an order of acquittal in favour of the accused. She has further submitted that when wife of the deceased, who is examined as PW-16, Pinkiben, deposed to before the Court that on receiving phone call from the husband, when she reached the place of offence, respondent-accused was hitting her husband on head with pipe. Therefore, it is submitted that he