An accused is presumed innocent until proven guilty beyond reasonable doubt; the prosecution failed to provide sufficient evidence to overturn the acquittal.

JUDGMENT :

A.S. SUPEHIA, J.

The accused Nos.1, 4, 9 and 10 have passed away, their death certificates are ordered to be taken on record. The present appeal stands abated qua the deceased accused.

1. The present appeal is filed challenging the acquittal order dated 23.07.1997 passed in Sessions Case No.33 of 1993 by Additional Sessions Judge, Bhavnagar for the offences punishable under Sections 144, 147, 148, 447, 302 and 201 read with Section 149 of the Indian Penal Code, 1860 ( IPC ) and under Section 135 of the Bombay Police Act (B.P. Act).

2. It is the case of the prosecution as per the Charge at Exh.4-A that all the accused had assaulted the deceased - Bhojubha Temubha Gohil on 29.08.1992 by inflicting injuries by sticks and axe on various parts of his body and thereafter, he was tied to the cot and they burnt his body.

The entire case of the prosecution hinges on three witnesses i.e.

(i) PW-5, Bharatsinh Temubha Gohil, at Exh.39, who is the brother of the deceased, (ii) PW-6, Ladhubha Mohobbatsinh, at Exh.40, who is the uncle of the deceased, and PW-7, Ghanshyamsinh Temubha Gohel, at Exh.42, who is the brother of the deceased.

3. In pursuance to the above allegation of the first informant, the F.I.R. was lodged with the Ghogha Police Station, Bhanvagar for the offences punishable under Sections 302, 147, 148, 447, 201 read with 34 of the IPC and Section 135 of the B.P.Act, vide CR No.I-82 of 1992 dated 29.08.1992. The Investigating Agency, during the course of investigation, has recorded statements of the witnesses, medical officer and have drawn various panchnamas for the purpose of proving the offence. After having found sufficient material against the respondents-accused, charge-sheet came to be filed.

4. Upon committal of the case to the Sessions Court, Jamnagar, the learned Sessions Judge framed the charges vide Exh.4-A against the accused. The accused pleaded not guilty and claimed to be tried. They were tried for the said offences and in order to bring home charge, the prosecution has examined 10 prosecution witnesses and also produced various documentary evidence before the Trial Court.

5. Learned APP Mr.Soni has submitted that the Trial Court fell in error in appreciating the oral as well as documentary evidence. It is submitted that there is pristine ocular evidence of forming an unlawful assembly with intention to commit murder of the deceased. He has submitted that the accused are directly implicated in the heinous act of setting the deceased on fire, while he was asleep in the field, resulting in 3rd degree injuries to the deceased and those injuries have been supported by the medical examination and to discard such evidence, no cogent reasons have been assigned by the Trial Court and the accused ought to have been convicted for the offences. It is also submitted that personal grievance was the primary motive behind the crime and the Trial Court ought to have considered the key reason for the murder, which stems-out from the death of a relative or gang member of the deceased. He has submitted that a cycle of violence was initiated by the accused and their family or gang members, when they killed the deceased’s father and hence, in retaliation, the deceased killed one of the respondents’ family or gang members, which ultimately led all the respondents to kill the deceased.

6. Learned APP has submitted that the Trial Court has primarily acquitted the accused on the ground that the evidences of the other interested witnesses and panchas are not trustworthy and hence, they were declared hostile. He has submitted that the submissions of the eye-witnesses, who have identified the accused in their deposition, cannot be believed beyond reasonable doubt. It is submitted that even the medical officer is not supporting the case of prosecution so far as the injuries of the eye-witnesses are concerned.

7. Learned APP has further submitted that the findings of acquittal are contrary to law and evidence on record and the findings reco