IMPORTANT POINT
The court established that acquittal is warranted when the prosecution fails to prove guilt beyond reasonable doubt, particularly when key witnesses turn hostile and evidence is insufficient.

ORDER :

1. This Acquittal Appeal is directed against the judgment dated 13th July 2007 passed in Sessions Case No. 29 of 2007.

2. By the said judgment, Mohd. Juber, Gaffur Khan, Raish Mohd., Akhtar Hussain, Gulam Hussain, Bhupendra Giri and Jamil Khan were acquitted of the criminal charges framed against them under sections 148 and 302 of the Indian Penal Code; alternatively under section 302/149 and section 307 of the Indian Penal Code, or alternatively under section 307/149 and section 341 of the Indian Penal Code. The respondent No. 5, namely, Gulam Hussain was also acquitted of the charge under section 4/25 of the Arms Act.

3. As it appears from the judgment dated 13th July 2007, Jamil Khan was arrested after the charges against the other accused-respondents were framed and, therefore, a separate charge under section 302/120-B of the Indian Penal Code was framed against Jamil Khan.

4. On the basis of a report submitted to the Officer-in-Charge of Kotwali Chittorgarh P.S. Criminal Case No. 821/2004 was lodged under sections 147, 148, 149, 341, 323, 324, 302 and 307 of the Indian Penal Code. In course of the investigation, the dead body was sent for postmortem examination and his blood-soaked clothes, shoes and the motor vehicle were seized. The police also collected blood-soaked clothes of the witness Mohd. Haneef @ Annu. These articles were sent for the FSL report and that was produced during the trial as Exhibit P-75.

5. The case of the prosecution is that Mohd. Sarif and Mohd. Haneef were proceeding on a motor cycle towards the Handicrafts Convention and, when they arrived near Jain Mandir, the accused persons came on two motor cycles and started assaulting them. This is the allegation made in the written report that Gulam Hussain attacked Mohd. Sarif with sword and caused injury over his right leg with an intention to cause his death. In the occurrence, Mohd. Haneef also suffered injuries but somehow he could escape and saved his life.

6. During the trial, the prosecution examined 29 witnesses and laid in evidence certain documents including the postmortem examination report. On behalf of the accused persons, 5 witnesses were examined who disputed the seizure of sword and other articles by the Investigating Officer. These witnesses deposed in the Court that they are the residents of the place near to the place of occurrence and they did not observe the presence of the accused persons at the time and place of occurrence.

7. The learned Sessions Judge on appreciation of the evidence laid by the prosecution and on behalf of the defence held as under:

“18. According to the evidence discussed above, my conclusion is that the eyewitnesses of the incident are Mustaak who lodged the First Information Report and Mohammad Haneef alias Annu who was injured in the incident and in whose presence the incident took place. Mohammad Haneef has sustained injuries in the incident but he has turned hostile in the court and has not said that any of the accused assaulted him, rather he has told a different story in the court statements that a Marshall vehicle came near the Jain temple on the fort in which there were two-three girls besides men, the deceased Mohammad Sharif molested those girls due to which a fight broke out between them, those people had sticks, swords etc. in the vehicle with which they assaulted him. Mustaak fled from there and Mohammad Sharif sustained injuries in the incident due to which he died and he sustained injuries while trying to save himself. Mustaak has said that he did not lodge a report, he does not know any of the accused, the assault was done by the people who came in the Marshall vehicle. Thus both the eyewitnesses have been declared hostile, they do not support the prosecution story.

19. As far as the circumstantial evidence is concerned, it has been mentioned in the FIR that Gulam Hussain hit the deceased on his knee with a sword. But Mustaak has not confirmed it in the court. Gulam Hussain has been arrested thro