The appellate court upheld the trial court's acquittal of the accused, emphasizing the presumption of innocence and reliability issues regarding witness testimonies and dying declarations.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. Here is the Appeal by the State against the judgment and order of acquittal.

2. Being dissatisfied by the judgment and order passed by the learned Sessions Judge, Banaskantha, Palanpur, dated 30.07.2001, acquitting the respondent from the offence under Sections 302 , 504, read with Sections 34 and 114 of the IPC and Section 135 of the Bombay Police Act, the State has preferred instant appeal under Section 378 of the Cr.P.C.

3. This Court has heard Mr. J. K. Shah, learned Additional Public Prosecutor, learned Counsel Mr.Prabhakar Upadhyaya for the respective parties.

4. Brief facts giving rise to file the present Appeal are that, the respondents accused were tried and prosecuted for the offence of murder. The incident took place on 02.03.1998 at about 09:00 p.m. at Village Navi Sendhani. The deceased Somaji Jitaji and the respondents accused being cousin brother, had a dispute about the fetching water from the common well. At the time of incident, the deceased was came to a temple situated in the farm itself for prayer. The respondents accused keeping the grudge with respect to common well, assaulted the deceased with stick and according to the prosecution case, the accused Laxmanji gave a stick blow at the right hand and stomach on the body of the deceased, whereas the accused Sendhaji gave a stick blow on the right foot of the leg. In the said scuffle, due to hue and cry, the brother of the deceased came to his rescue and the deceased was taken to his home. There was no visible serious injuries on the body of the deceased and therefore, he was not taken to the hospital immediately, but in the mid-night, the deceased complained of pain of stomach and felt dizziness, as a result, he was taken to Village Vadgam and City Palanpur for treatment and then after, he was referred to higher center at Ahmedabad. The deceased was operated in the stomach injuries as he sustained injuries over small intestine and lever, as a result, the infection was escalated in the stomach which resulted into septic peritonitis. The deceased died after 8 days of the incident. The deceased himself lodged an FIR inter alia alleging that he was beaten by respondents accused because of long dispute of fetching water from common well. On the basis of FIR of the deceased, the offence punishable under Section 323, 504, 114(B) of the IPC, being registered with Vadgam Police Station, and the investigation being handed over Karshan Jivabhai who had took visit the place of incident and drew the panchnama of place of incident. Meanwhile, deceased died after a week, as a result, the offence of murder punishable under Section 302 being registered and accordingly, accused were arrested and upon completion of the investigation, the I.O. filed a chargesheet before the jurisdictional Magistrate, Bhiloda.

5. Since the case was exclusively triable by the Sessions Court, the Court committed the case to the Sessions Court, who has been culminated into Sessions Case No. 84 of 1998.

6. The learned Additional Sessions Judge, Himmatnagar, Sabarkantha framed charge under the aforesaid sections against the accused to which, they pleaded not guilty and claimed trial.

7. In order to prove the charge, the prosecution has examined following material witnesses: