In appeals against acquittal, the appellate court respects the trial court's findings unless evidence illustrates a perverse inquiry, maintaining the presumption of innocence.

JUDGMENT :

GITA GOPI, J.

1. The challenge is given to the judgment and order of acquittal passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No.127 of 1997 dated 04.12.1998 under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’ for short).

2. Learned APP Mr. Krutik Parikh, has referred to the charge framed by the trial Court at Exh.3, to state about the case against seven of the accused. Learned APP has also referred to the evidence of P.W.6 and P.W.8, who according to the learned APP, though being eye witnesses have not been believed, which is a gross error by the trial Court.

2.1 Learned APP stated that the learned Judge has committed error in creating unnecessary doubts in depositions of the prosecution eye witnesses and has given undue importance to other evidence, which would not have any relevance. Learned APP submitted that the prosecution witnesses’ depositions have similarity and the learned Judge has failed to appreciate that the witness – Versibhai Dhanabhai was staying at his field during night hours and therefore, he would be well aware of state of affairs of the fields of neighbours. Learned APP submitted that the learned trial Court Judge was required to believe P.W.6 – Versinh Dhana, aged about 55 years, who had seen weapons at the hands of the accused persons in the light of the battery and who had also given the detail information regarding the incident. He submitted that the learned Judge has committed error in disbelieving the eye witnesses by holding them as false and the evidence as fabricated.

2.2 Mr. Parikh, learned APP has referred to the depositions of the eye witnesses and the map of place of offence, to submit that Anirudh Girdharlal Trivedi (P.W.3), who had been made as panch in two of the panchnamas at Exh.25 and who has proved the panchnama, was required to be believed and witness Shambhubhai was also not believed since being a relative of the complainant.

3. After hearing learned APP, we have perused the judgment of the learned trial Court Judge. The allegation against the accused is to the effect that on 20.05.1997 at about 9 O’ clock at night, in the field of Nagji Kuber Thakor, near a room i.e. a farm house, all the accused owing to their old enmity had formed unlawful assembly and in furtherance to their common intention had murdered Keshabhai Amrutlal Barot, and that the accused were wielded with weapons like scythe, stick and baton and with those weapons had assaulted Keshabhai Amrutlal and caused injuries on the head and other parts of the body, which led to his death. The accused were tried under Sections 302 , 147, 148 and 149 of the IPC. Further, the charge was also framed for breach of Section 135 of the the BOMBAY POLICE ACT , in connection with the notification for the prohibition of weapons.

3.1 The complaint was given by Jayantilal Amrutlal Barot, who was at the relevant time, Judicial Magistrate at Dhanduka, and according to his complaint, they are four brothers and eight sisters and he had come there at his village for the marriage of his sister Naina. His house is at Sanadar. When after having his dinner and when they all were sitting, at that time, Desai Versinhbhai Dhanabhai (P.W.6) and his son Dharamsinhbhai (P.W.8) came running to their house and informed them that their brother Keshabhai was beaten by Thakor Nagjibhai Kuber of their village near the room of their farm and when he was shouting to save him, he and his son rushed there, at that time, they saw stick in the hands of Na