IMPORTANT POINT
An appellate court should not overturn an acquittal unless there is compelling evidence, respecting the presumption of innocence and the trial court's findings.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)

1. Challenge in this appeal filed u/s. 378(1) of the Code of Criminal Procedure, 1973 is to the judgment and order passed in Sessions Case No.128 of 1991 dated 30.09.2003 by the learned 2nd Fast Track Judge, Junagadh whereby, the respondents herein, original accused, have been acquitted of the charge u/s. 302, 504 and 114 of IPC.

2. The facts in brief as emerging from the record are that on 03.04.1991, at around 0900 hrs., the original complainant, Gobar Mepa Bharwad, had taken his cattle to the open land of his village for grazing. It is alleged that without his knowledge, the cattle grazed into the field of accused No.1 and as a result, accused No.1 reprimanded Gobar Bharwad and also hurled abuses at him. Thereafter, a quarrel ensued between the parties and during this period, the accused No.1 hurled a stone at Gobar Bharwad, which hit him on his shoulder. Thereafter, both accused Nos.2 and 3 reached the spot armed with sticks. The accused No.1 took the sticks from accused No.3 and thereafter, both accused Nos.1 and 2 inflicted stick blows on Gobar Bharwad and subsequently, they were joined by accused No.3. After some time, all the three accused fled the scene of offence.

2.1 Initially, injured Gobar Bharwad was taken to Bilkha Government Hospital and thereafter, he was shifted to Junagadh Civil Hospital. A complaint in connection with the above incident was registered with Visavadar Police Station vide C.R. No. 39 of 1991. However, on the same day, i.e. on 03.04.1991, Gobar Bharwad succumbed to the injuries and therefore, offence u/s. 302 IPC came to be added.

3. During the course of trial, accused No.3 passed away and therefore, the Sessions Case stood abated qua accused No.3. At the end of trial, the learned Sessions Judge acquitted both respondent Nos.1 and 2 of all the charges vide the impugned judgment and order. Being aggrieved by the same, the appellant-State has preferred the present appeal.

4. Learned APP appearing for the appellant-State submitted that the learned Sessions Judge has not appreciated the evidence on record in its proper perspective. Prior to his death, the deceased had given his dying declaration before Dayashankar Rajabhai, PW-12 Exhibit-35, who was the Police Head Constable on duty at Junagadh Civil Hospital. In his dying declaration, the deceased has categorically named the respondents herein as the assailants. However, the learned Sessions Judge ignored this vital evidence on mere technicalities.

4.1 Learned APP further submitted that the learned Sessions Judge has seriously erred in not believing the evidence of both Valabhai Merambhai, PW-10 Exhibit-33 and Devsibhai Mepabhai, PW-11 Exhibit-34, before whom the deceased had given the names of the respondents as the assailants when they had visited the Hospital. However, the learned Sessions Judge brushed aside their evidence on the ground that they came to know about the names of the assailants from somebody else and not from the deceased directly when they had visited him at the Hospital. However, such conclusion is based on mere assumptions and presumptions and not on any cogent evidence. It was, therefore, prayed that the impugned judgment and order of acquittal deserves to be quashed and set aside.

4. Learned advocate Mr. Buch appearing for the respondents submitted that there is nothing on record to suggest the involvement of the respondents in the alleged offence. The depositions of two witnesses, i.e. PW-10 and PW-11, was not found to be reliable and trustworthy as the medical evidence on record clearly suggests that the condition of the deceased was critical while he was brought to Bilkha Civil Hospital and was, thereafter, shifted to Junagadh Civil Hospital and therefore, he was not in a condition to say anything, as has been deposed by PW-10 and PW-11 in their evidence.

4.1 It is further submitted that the evidence of Police Head Constable, Dayashankar Rajabhai, PW-12 Exhibit-35, was also