The appellate court upheld the trial court's acquittal due to unreliable evidence and inconsistencies in eyewitness testimonies, reaffirming the presumption of innocence and caution in overruling possible views.

JUDGMENT :

P. M. RAVAL, J.

1. At the outset, learned Additional Public Prosecutor submits report dated 18.12.2025 of the Police Inspector, Manavadar Police Station, stating that except accused No.2 - Amrutlal Jethabhai Jadav and accused No.5 - Shantilal Jethabhai Jadav rest three accused persons namely Jethabhai Danabhai Jadav - accused No.1, Vrajlal Jethabhai Jadav – accuse No.3 and Devshibhai Devrajbhai Parmar – accused No.4 have expired. The said report is taken on record. Accordingly, the present appeal appeal against the original accused Nos.1, 3 and 4 stands abated, and thus, present appeal remains against the original accused Nos. 2 and 5 only.

2. The present appeal is preferred by the State of Gujarat under the provisions of Section 378 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) being aggrieved and dissatisfied of the judgment and order of acquittal for the offence punishable under Sections 147 , 148, 149, 302 and 325 of the Indian Penal Code, 1860, (for short “ IPC ”) and Section 135 of the Bombay Police Act (for short “B.P. Act”), passed by the learned Additional Sessions Judge, Junagadh, dated 15.09.1998, in Sessions Case No.160 of 1995.

3. The facts of the case of the prosecution in nutshell are that, on 16.09.1995, Chhaganbhai Kurjibhai Jadav (injured – victim), his son Niteshbhai (deceased) and alongwith Manjibhai (informant) were going to the farm of Chhaganbhai, and when they reached near village Dhansar, the respondents herein – original accused persons came behind from the bushes and attacked Chhaganbhai and his son Nitesh. The accused persons were armed with Axe, Scythe and Iron Pipes and started beating indiscriminately Chhaganbhai and Nitesh. On crying for help by the Chhaganbhai and Nitesh, the accused persons ran away from the place of offence. Thereafter, both the victims were taken to the hospital by brothers fo Chhaganbhai namely Hirjibhai and Mansukhbhai in the rickshaw of Musabhai Gameti and at that time Keshav Kurji was also present. Thereafter, the informant – Manjibhai lodged complaint with Manavadar Police Station for the offence punishable under Sections 147 , 148, 149, 302 and 325 of the IPC read with Section 1365 of the B.P. Act.

3.1. After completion of investigation, charge-sheet came to be filed before the Court of Judicial Magistrate First Class, Manavadar, since the case is triable by the Sessions Court, the same committed before Session Court, Junagadh. The said case is numbered as Sessions Case No.160 of 1995. Charges came to be framed vide Exhibit 1 and the plea of accused were recorded, and accused persons having denied the charges, prayed for trial. Pursuant to which the prosecution led both documentary as well as oral evidence to bring home the charges. After recording the statement under Section 313 of the Cr.P.C., and according opportunities to the learned advocates for the respective parties, the learned Session Court acquitted the original accused – respondents herein. Hence, the present appeal by the State.

4. Learned Additional Public Prosecutor Mr. Rohan N. Shah for the State would submit that the learned Judge has not properly appreciated the fact that respondents – accused have formed unlawful assembly with clear intention to commit murder of the deceased and assaulted upon deceased Nitesh Chaganbhai with their respective weapons and also injured prosecution witness Chhaganbhai Kurji. The learned trial Judge has also not properly appreciated the deposition of complainant and eye witness of the present case Manji Soma at Exhibit 30, injured prosecution witness Chhagan Kurji at Exhibit 31, eye witness Musabhai Ibrahimbhai at Exhibit 32, eye witness Devraj Nathabhai Karmata at Exhibit 33, eye witness Ishabhai Ibrahimbhai at Exhibit 34, Sulemanbhai Dal, who has taken injured from the place of incident to hospital in rickshaw at Exhibit 35 and erred in acquitting the accused. The evidenceof Dr. Kusumben Palivala who is a medical officer, has clearly stated