IMPORTANT POINT
An acquittal carries a double presumption of innocence, and the appellate court must not disturb findings unless clear error is established.

JUDGMENT :

(A.Y. KOGJE, J.)

1. The present appeal is preferred by the State against the judgment and order of acquittal dated 27.11.1998 passed by the Additional Sessions Judge, Court No.11, City Civil & Sessions Court, Ahmedabad in Session case No.155 of 1998. By the impugned judgment and order, the Sessions Court acquitted the respondent-accused for offences under Sections 302 and 135(1) of Indian Penal Code.

2. It is the case where on 18.08.1997 at about three O’clock in the noon deceased Vinod, son of Laxmansinh Hazarisinh went to his friend Sureshkumar Rajput @ Shiva’s house. Thereafter at about 6-30 in the evening said Shiva and Vijay Manubhai Prajapati brought Vinod in rickshaw in blood stained condition to his house. On inquiry by his father Laxmansinh Vinod informed that Rintu Mishra has stabbed him near Surelia Estate opposite Jain Milan Society in a quarrel while gambling. Thereafter, Vinod was taken to Manekba hospital by said Laxman Hazarisinh. Shiva and Vijay but as his condition was serious, the compounder of the hospital advised them to take Vinod to L.G.Hopsital so he was to L.G. Hospital where said Vinod died during the treatment.

2.1 Charge, Exh.2 came to be framed against the respondent-accused, which is as under:-

“On 18/08/97 at around 18/30 hours, on a public road in front of the Jain Mill Society near the Sureliya Estate in Ahmedabad, you, the accused, caused injuries to the complainant Laxmansinh Hajarsinh’s son, Vinodkumar on various parts of his body with the Rampuri knife in your possession. The said injuries were caused by you with the intention of causing death of the deceased, or with the intention of causing such bodily injury as was likely to cause his the death, or with the knowledge that you were likely by such act to cause the death of Vinodkumar or the injuries caused to the deceased were sufficient to cause his death in the ordinary course of nature. Thus, the injuries caused by the accused to the deceased caused his death and thereby, the accused has committed the offence of murder punishable under section 302 of the Indian Penal Code.

Further, on the aforesaid date, time and place, by holding a deadly weapon like the Rampuri knife in public, the accused breached the notification regarding prohibition to keep arms issued by the Police Commissioner, Ahmedabad and thereby, the accused has committed an offence punishable under section 135(1) of the Bombay Police Act.”

3. Learned APP submitted that it is a case of dying declaration. It is submitted that the Sessions Court has committed an error in not believing the dying declaration holding that it ought to have been supported by cogent medical evidence regarding state of health of the deceased. It is submitted that it is a case where oral dying declaration was given before the complainant, who is father of the deceased and in every case, medical opinion would not be available.

3.1 It is submitted that the Sessions Court has committed an error in not taking into consideration the deposition of PW No.9- Dr.Manesh Tulshidas Kapadia, Exh.27, who was the Medical Officer at Civil Hospital, Ahmedabad. In his deposition, he has clearly stated that the deceased was profusely bleeding when he was taken to him at the hospital and that the cause of death of the deceased was unnatural due to shock and hemorrhage as a result of left lung injury.

3.2 It is submitted that the Sessions Court has also committed a grave error in discarding evidence of PW No.10- Natthelal Dalchand Varma, Exh.29. He is the eyewitness of the offence. He has deposed that the incident took place on 18.08.1997 at about 06;00 or 06;30 in the evening when he was purchasing vegetables. He has deposed that he saw two persons came running from his side and the person running behind other person inflicted two to three knife blows on the person running ahead.

3.3 It is submitted that normally, an injured person would give true account of his injury to his near relative and in the present ca