The appellate court upheld the acquittal, emphasizing the presumption of innocence and the necessity for clear evidence of guilt, reaffirming that if two reasonable conclusions are possible, the one favoring the accused must prevail.

JUDGMENT

BIREN VAISHNAV, J.

1. This acquittal appeal has been filed under Sec.378 of the Code of Criminal Procedure, challenging the judgment and order dated 25.02.1997 passed by the Additional Sessions Judge, Porbandar, in Sessions Case No. 10 of 1995.

2. The State is in appeal by way of the impugned judgment before us. The accused has been acquitted of the charges leveled against him under Sec.450, 452 and 302 of the Indian Penal Code.

3. That on 12.12.1994, at 4:00 a.m. in the morning, the respondent entered the house of his father, Gaurishankar Rajyaguru with an intention to kill. He, with sickle in his hand, inflicted blows on his father’s head, back and eyes which resulted in the death of the father. Several witnesses were examined by the prosecution. The Session Court, essentially having perused the depositions of the respondents, wife-Varsha, the depositions of the assailant, respondent-brother Somnath and Ramshankar at Exhs. 18 and 12 read in conjunction with the deposition of Police Sub Inspector Shri Chavda at Exh.34 and also the Dying Declaration recorded by the Executive Magistrate in conjunction with the medical evidence of Dr. Vyas who carried out the primary treatment on admission of the deceased and Dr. Nathwani, who carried out the post-mortem found that the testimonies of the relative i.e. the wife and the sons when read in context of the dying declaration did not inspire confidence, inasmuch as, neither the identity of the respondent assailant was confirmed nor were the injuries that the deceased sustained caused death. Hence, the judgment and order acquitting the respondents.

4. We have independently been taken through the evidence of the witnesses in question.

5. At Exh.12, Ramshankar Gaurishankar, the brother of the respondent has been examined. In his Examination-in-Chief, he states that he identifies Babubhai alias Bajrang, the accused sitting in the Court. That they were five brothers. Narbheshankar and Somnath were two brothers staying at Chhayagam in their own separate houses. Brother Bhawanishankar was staying at Bileshwar. The father was staying separately alone. The house had four rooms of which two rooms were rented to one Tulsidas and Lakhabapu. Bajrang, the respondent herein was staying separately. That there was no electricity in the room occupied by the father. That he was informed of his father’s injuries at 7:15 in the morning when he was at Birla factory. He immediately rushed to the hospital where he found his brother Somnath and Narbheshankar. He did not ask his father as to what and who had inflicted the blows and that who had caused such injuries. The father was fully conscious. He neither discussed nor questioned his father who was present or tried to find out the reasons for his father’s injuries. The father was fully conscious and recognized all the three brothers who were present in the room. Five days after the incident i.e. on 16.12.1994, his father asked for a cup of tea and when requested that he may take rest, he tried to get up, but he failed as a result of which he sustained injuries on his head.

5.1 In the cross-examination, the witness submits that his father had a weak eyesight and was hard of hearing. That whenever he went to meet his father, he would give his name out and greet him with the phrase “Jay Bajrang.” He would confuse the names of the sons with their brothers as a result of failing memory. Where the father was staying, there was an idol of Hanuman as father was believing in black magic. He would continue to utter words like “Jay Bajrang.” There was no toilet or electricity in the room where his father was staying. That the father was continuously in a state of mind which would exhibit lack of alertness. On the date prior to the date of the incident, the father had a fall.

5.2 The tenant, Nimuben was examined at Exh.13. Nimuben in her deposition would submit that there was no electricity in the room which the complainant Gaurishankar occupied. There was no facility o