The prosecution must establish guilt beyond reasonable doubt and credibility of eyewitnesses is essential for conviction.

JUDGMENT :

ILESH J. VORA, J.

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, passed in Sessions Case No.194 of 2000, dated 23.03.2001, acquitting the respondent from the offence under Section 302 read with Section 34 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 advocates Mr.P.R. Abhichandani, with Mr.Tushar Chaudhary and Mr.M.C. Barot, for the respective parties.

4. Brief facts giving rise to file the present Appeal are that, four accused – respondents herein were tried and prosecuted for the offence of murder. The incident of murder being took place at Village Salempura, Palanpur, Banaskantha. The deceased Bhagvan Vala and accused party belong to the same community and residing in the same area of the village. According to the prosecution case, on 18.06.2000, deceased Bhagvan was brutally assaulted by the accused with the weapon skype (dhariya) and stick. The deceased had gone to call of nature at about 11:00 p.m. in the night hours, and while returning back, he was confronted by the respondents accused and taking revenge of earlier dispute, he had been assaulted with the weapons, as referred above, by the accused, as a result, he sustained a serious head injuries and died during the treatment period. It is further case of the prosecution that the daughter of deceased Kantaben (PW:9) claimed to be eyewitness of the incident as after hearing the hue and cry, she rushed to the place of the incident where she had noticed the presence of the accused and causing injuries by them to his father with the deadly weapon. The witness PW:9, after noticing the incident, went to house of the witnesses viz. Dhula Vala (PW:6), Suresh Moti (PW:8) and Moti Soba (PW:10) and informed them about the incident and immediately, the witnesses along with Kantaben (PW:6) came to spot where they saw that the accused respondents by deadly weapons causing the injuries to deceased Bhagvanbhai and then, after seeing the witnesses, they ran away from the spot. The deceased was taken to Palanpur Civil Hospital where he succumbed to injuries. The FIR came to be lodged by PW:6 Dhula Vala for the alleged act of murder of his brother, inter-alia stating that the respondents accused, in furtherance of their common intention, killed his brother as prior to the offence, there was a dispute with the accused party about the right of way with respect to house property. The FIR was registered with Gadh Police Station for the offences, as referred above and the investigation of the case was entrusted to Mr.Naran Desai (PW:11), Gadh Police Station, Palanpur. During the investigation, the I.O. sent the dead body for post-morterm, took visit at the place of the incident and collected necessary samples by drawing place of panchnama, recorded the statements of eyewitnesses, arrested the respondents accused, sent the seized articles to the FSL and after receiving the report and upon completion of the investigation, the I.O. led the chargesheet before the jurisdictional Magistrate Court.

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. 194 of 2000.

6. The learned Sessions Judge, Palanpur, Banaskantha framed charge under Section 302 read with Section 34 of the IPC and Section 135 of the B.P. Act, against the accused to which, they pleaded not guilty