The prosecution failed to prove the accused's guilt beyond reasonable doubt, resulting in acquittal under Section 302 of the Indian Penal Code.

JUDGMENT :

CHEEKATI MANAVENDRANATH ROY, J.

1. Challenge in this appeal is to the judgment dated 28/09/2012 passed in Sessions Case No.31 of 2011 on the file of the learned 6^th (Adhoc) Additional Sessions Judge, Surat whereby the sole accused in the said case was acquitted of the charge under Section 302 of the INDIAN PENAL CODE .

2. Prefatory facts of the prosecution may briefly be stated as follows:

2.1. On 18/09/2010, at about 9:15 a.m. in the morning when the deceased Vijaybhai Punabhai Rathod (hereinafter referred to as ‘the deceased’) was taking his breakfast along with his parents, PW-7 and PW-17 and sister, PW-8, in their house, a small girl aged about nine years, who is examined as PW-9, came to their house and informed the deceased that the accused is calling him. The deceased has accordingly left the house, and went to the house of the accused, which is also situate in the same street at a distance of 150 feet from the house of the deceased. It is stated that the accused questioned the deceased relating to recovery of a sum of Rs.20/- which was borrowed by the deceased from the accused and that in the said process that there was a quarrel between both of them. When parents of the deceased and sister heard shouts that they all went to the house of the accused and they noticed the accused catching hold of the neck of the deceased and quarreling with him. So they interfered and separated them and tried to pacify them. Thereafter, PW-7, PW-8 and PW-17 and the deceased came back to their house and they went away to attend to their daily labour work. It is stated that the deceased came to the house for lunch in the afternoon of that day and his sister, PW-8, served lunch to him and he could not take lunch stating that he is not feeling well and he slept on a cot. In the evening, when his parents, PW-7 and PW-17 came back to their house, after attending to their labour work, they noticed the deceased lying on the bed in an unconscious state. So, his parents along with their relative, PW-14 took him to the hospital where he was declared dead. Autopsy was held over his body and the doctor who conducted autopsy opined that he died due to asphyxia because of throttling of the neck.

2.2. PW-17, who is father of the deceased, lodged a report with the police. A case under Section 302 of the INDIAN PENAL CODE was registered against the accused and it was investigated. After competition of the investigation, charge sheet was filed for the offence punishable under Section 302 of the INDIAN PENAL CODE against the accused.

3. As the offence punishable under Section 302 of the INDIAN PENAL CODE was exclusively triable by the court of sessions, the committal court has committed the said case to the concerned sessions division and thereafter it was made over to the learned 6^th (Adhoc) Additional Sessions Judge, Surat for trial.

4. The trial court has framed a charge for the offence punishable under Section 302 of the INDIAN PENAL CODE against the accused. He denied the said charge and claimed to be tried.

5. The trial took place and at the culmination of the trial, eventually, the accused was found not guilty for the offence punishable under Section 302 of the INDIAN PENAL CODE and he was acquitted of the said charge by the trial court.

6. Aggrieved thereby, the State has preferred the present appeal assailing the legality and validity of the impugned judgment of acquittal.

7. As can be seen from the prosecution version, the genesis of the offence appears to be a dispute arose with regard to recovery of Rs.20/- said to have been borrowed by the deceased from the accused and that to demand the deceased to repay the said amount of Rs.20/- that the accused has sent PW-9