The evidentiary burden on the prosecution to prove guilt beyond reasonable doubt was not met, leading to the upheld acquittal of the accused.

JUDGMENT :

ANIRUDDHA P. MAYEE, J.

1. Present Criminal Appeal 352 of 1996 and Criminal Revisional Application No.114 of 1996 impugn the judgment and order dated 12.3.1996 passed by the Additional Sessions Judge, Mehsana in Sessions Case No.190 of 1995 whereby the sole accused has been acquitted of the charge under Section 302 of INDIAN PENAL CODE read with Section 135 of the BOMBAY POLICE ACT .

2. The case of the prosecution, in brief, is that on 21.6.1995, at about 4.30 a.m. in the morning, deceased Bhartuji Shankaji was sleeping on the cot in the open ground outside his house. His younger brother Govindji was also sleeping on the Varandah about 2 ft away. It is further the case of the prosecution that the respondent accused had come there with dharia in his hand and started assaulting deceased Bharthuji while he was sleeping. The respondent accused is alleged to have inflicted four fatal blows on the deceased, which had caused death of the deceased. The prosecution case further is that while the assault was being taken place, brother of the deceased Govindji Shankaji shouted loudly. Upon hearing the shouts, cousin brother of the deceased who was residing in a house opposite to the house of the deceased woke up and immediately rushed to the place of assault. It is further the case of the prosecution that thereafter, the respondent accused ran away. That at the time of assault, the brother, cousin brother, uncle and aunt were at the place of assault. It is further the case of the prosecution that the family members of the deceased sat near the body of the deceased till 7.30 a.m. Thereafter, the cousin brother of the deceased Mathurji Bhikhaji Thakore went to one Meruji in the village and upon his advice, proceeded to go to Rajpur Police Chowky where he informed about the incident to the Head Constable Abuji Motiji (PW-9). Thereafter, both these persons proceeded to Kadi Police Station and informed about the incident to the Police Sub Inspector in-charge of the police station and an FIR came to be lodged against the respondent accused. That thereafter, Head Constable Abuji Motiji along with complainant Mathurji Shankaji proceeded back to the village and went in search of the respondent-accused. PW-9 Abuji Motiji upon searching the village and nearby areas while following the leads available to them, caught the respondent accused from the sim of village Chandarda. The respondent accused was thereafter brought to the Gram Panchayat office where PSI Vasantbhai Solanki was present along with other persons of the village and the respondent accused came to be arrested for the offences charged. Since the respondent accused pleaded not guilty, the case was put for trial and came to be numbered as Sessions Case No.190 of 1995. In support of its case, the prosecution has examined 12 witnesses and produced the documentary evidence on record. After closing of the evidence, the statement of the respondent accused under Section 313 of the Code of Criminal Procedure came to be recorded by the learned Sessions Judge. After hearing the arguments on behalf of the parties, the learned Sessions Judge by the impugned judgment and order dated 12.3.1996 was pleased to acquit the respondent accused of the charges under Section 302 of INDIAN PENAL CODE and Section 135 of the BOMBAY POLICE ACT . Aggrieved, the State has filed Criminal Appeal No.352 of 1996 and the complainant has filed Criminal Revision Application No.114 of 1996.

3. Mr. Ronak Raval, learned Additional Public Prosecutor, appearing on behalf of the State, has submitted that the incident of assault by the respondent accused was witnessed