The acquittal of the accused was upheld due to insufficient evidence and the principle of presumption of innocence in criminal jurisprudence.

JUDGMENT :

Justice A.Y. Kogje, J.

1. This appeal is filed challenging the judgment and order dated 09.06.2023 passed by the 2nd Additional Sessions Judge, Visavadar in Sessions Case No.01 of 2020, by which the respondent-accused has been acquitted of the charges under Sections 307, 323 and 326 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The said acquittal is on the basis of benefit of doubt.

2. Learned advocate Mr.V.A.Zala appearing for the appellant-original complainant has submitted that while recording the acquittal, the Sessions Court has not taken into consideration the evidence available on the record, particularly recovery of the Shovel (Pavdo) which had the blood stains of the victim and the same was supported by the FSL report which has confirmed the blood stains belonging to the victim’s blood group on the Shovel. Learned advocate submitted that the trial Court has not taken into consideration the medical evidence, wherein the medical officers have deposed that the injury caused on the body of the injured is possible by inflicting a blow of the weapon (Shovel).

2.1 Learned advocate has also submitted that the Court has not taken into consideration that the prosecution was able to establish the motive as there was a dispute pertaining to a land existing between appellant’s family and respondent-accused. Learned advocate submitted that when the accused in the statement under Section 313 of Cr.P.C. has admitted about the existing of the dispute with regard to the land, the motive itself is established.

2.2 Learned advocate has strenuously argued on the point of the seizure of the muddamal article by drawing attention of this Court to the panchnama drawn for the purpose being Exh.21 and submitted that in such panchnama, it is the say of the accused that the weapon (Shovel) which was used in the offense, he would be able to show the location and accordingly, at the time of arrest itself, the Shovel was seized under the panchnama. It is argued that though the panch witnesses of the panchnama Exh.21 have not supported the case of the prosecution and have been declared hostile, yet the Investigating Officer in his deposition has referred to the panchnama and therefore, by the Investigating Officer, the prosecution has established the content of the panchnama and in this regard, has relied upon the decision of the Division Bench of this Court in case of Abdulwahab Abdulmajid Baloch vs. State of Gujarat, reported in, 2007 (0) GUJHC 17225.

2.3 Learned advocate has thereafter submitted that the acquittal is erroneous on the ground that the trial Court has not considered the evidence of the complainant himself, who is the son of the injured only on the ground that there is a discrepancy in giving the description of the assailants in the medical case papers drawn by the private hospital and that drawn by the Government hospital. It is submitted that only because in the Government hospital, name of both the assailants have not given in detail and therefore, the reliability of this witnesses was in question.

3. The court heard the ld advocate in detail after providing him some tiem to prepare himself and also perused the record. By an order dated 01.07.2024, this Court had called for the records and proceedings from the trial Court and accordingly, the records and proceedings are available with the Court.

4. An FIR being C.R.No.I-107 of 2019 came to be filed on 04.11.2019 in connection with which post investigation, charge-sheet came to be filed on 03.12.2019 against the sole accused respondent herein. The case was committed to the Sessions upon due compliance with Section 209 of the Code of Criminal Procedure and ultimately vide Exh.6, charge came to be framed against the respondent to the effect that on 03.11.2019 at 17:00 hours in village sim of Leriya, the father of the complainant had dispute with the respondent with regard to the agricultural boundary and hence, the respondent assaulted with Shovel on the head