The appellate court affirmed that acquittals should not be reversed unless the trial court's view is wholly unreasonable, supporting the conviction under lesser charges when sufficient evidence exists.

JUDGMENT :

GITA GOPI, J.

1. The State has challenged the judgment and order of acquittal dated 11.9.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Navsari in Sessions Case no.28 of 2003. The charge was framed under Section 302 read with Section 114 of the INDIAN PENAL CODE , 1860 (IPC).

2. The learned APP has referred to the charge and more specifically, the observation of the learned Judge with that of the evidence of PW10 – Mohanbhai Narayanbhai which as per the learned APP, is vital evidence on record, which clarify the prosecution case. The learned APP has submitted that the learned Trial Court Judge has erred in disbelieving the case of the prosecution, where though there was extra-judicial confession of the accused, the learned Judge was not ready to believe the prosecution case, which was erroneous on the evidence on record. The learned APP has submitted that a political colour has been given by the defence, which actually has no bearing to the facts of the case. The judgment is erroneous and is required to be set aside.

3. The charge which was framed shows that all the three accused in a concert on 7.4.2003 at about 01:00 hrs. at Village Satem, had taken deceased Srinivas along with them, who allegedly was having relation with the daughter of accused no.1 – Budhibhai @ Maganbhai Madhubhai Patel and therefore, accused nos.1 and 2 had beaten him with stick and for accused no.3 – Bhagubhai Bhanabhai Hadpati deceased Srinivas had accosted him in the Garba programme and had given kick and fist blows causing death of the deceased and thus, were charged for the offence punishable under Sections 302 and 114 IPC.

4. The prosecution during the trial had examined about fifteen witnesses and almost about eleven documents were produced on record to prove the case of murder. The learned Trial Court Judge has disbelieved the prosecution case under Section 302 IPC. However, the conviction had followed under Section 325 IPC against all the three accused.

5. Heard Mr. Manan Mehta, learned APP at length, who has referred to the judgment, where he has submitted that though the acquittal is under Sections 302 and 114 IPC, the conviction is followed under Section 325 IPC and has also referred that the benefit of set-off appears to have been given. Thus, in view of that fact, the jail remarks was immediately called for and produced on record, which was sent by the Superintendent, Nadiad, District Jail and accordingly, the accused no.3 – Bhagubhai Bhanabhai Hadpati and accused no.1 – Budhibhai @ Maganbhai Madhubhai Patel, both had undergone the sentence under Section 325 IPC and were released from jail on 6.4.2004.

6. Mr. Manan Mehta, learned APP has submitted that the evidence on record refers to the extrajudicial confession of the accused and dying declaration of the deceased. The learned Judge was required to consider the case under Section 302 IPC since the accused had the intention to kill the deceased and the very fact also gets corroborated from the evidence of the complainant himself. Delay in medical treatment would not be fatal to the prosecution case and thus, submitted that in view of the postmortem report and the evidence of the complainant, which is consistent, the acquittal under Section 302 IPC is required to be set aside and conviction is required to be ordered.

7. On perusal of the judgment and the oral testimony of the witnesses, we are of the opinion that the learned Judge has rightly acquitted the accused under the charge of Section 302 IPC and the conviction under Section 325 IPC of all the accused is in accordance to the evidence on record and on proper appreciation of law.

8. The