ORAL JUDGMENT

1. Present appeal has been filed by the appellant – State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 15.12.2005, passed in Sessions Case No. 75 of 2005 by the learned Presiding OfÏcer, 4th Fast Track Court, Sabarkantha at Himatnagar, recording the acquittal.

2. Brief facts are that on 16.11.2004 at about 8:00 a.m. deceased younger brother of the complainant namely Jayeshbhai was going to the field for fetching grass at that time, his neighbours Amrutbhai Monghabhai Parmar, Vinodbhai Amrutbhai Parmar, Rajubhai Amrutbhai and Ramanbhai Monghabhai Parmar – respondents herein – original accused were standing on the road, asked Jayeshbhai as to who had written chit (letter) to Dharmishtha to which, Jayeshbhai denied of having any information. Hence, the respondents – original accused got infuriated and started giving filthy abuses to Jayeshbhai and thereafter, gave kick and fist blows. At that time, complainant Ishwarbhai and his uncle Kantibhai Becharbhai intervened and got relieved Jayeshbhai, however, while leaving, the respondents allegedly, threatened to kill him. Afterwards, in the evening, when complainant - Ishwarbhai asked deceased Jayeshbhai to join him to the field, Jayeshbhai told him that he would join him later, after going to the temple. Thereafter, when the complainant returned home at about 6:00 p.m., he was informed that there was a call from the hospital and that Jayeshbhai might have consumed poision and was serious and hence, the complainant rushed to Talod Government Hospital and by the time he reached there, Jayeshbhai had died. Hence, the complainant lodged the complaint against the respondents for the offences punishable under Sections 306, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860 (herein after referred to as “the IPC”).

2.1 Upon such FIR being filed, investigation started and the Investigating OfÏcer recorded statements of as many as 13 witnesses and produced certain documentary evidence. The accused have also examined one witness – Dharmishtha @ Chhaya Pashabhai Parmar at Exh. 43. After completion of the investigation, Charge-sheet was filed against the accused persons for the offence in question. The case was committed to the Sessions Court and the learned Judge trial Judge framed the Charge. Since the accused did not plead guilty, trial was proceeded against the accused. Vide impugned judgment and order dated 15.12.2005, the learned trial Judge acquitted the accused. Being aggrieved by the same, the State has preferred the present appeal.

3. Heard, Ms. Jirga Jhaveri, learned Additional Public Prosecutor for the appellant – State and Mr. Bhagyoday Mishra, learned advocate for the respondents - accused.

3.1 The learned Additional Public Prosecutor for the appellant – State has mainly contended that the learned trial Judge has erred in holding that the prosecution has failed to prove its case beyond reasonable doubt. She submitted that the impugned judgment of the trial Court is based on presumptions and inferences and thereby, it is against the facts and the evidence on record. The learned Additional Public Prosecutor further submitted that the learned trial Judge has failed to appreciate the evidence on record in its true and proper perspective and thereby, has erred in recording the acquittal of the respondents –

accused.

3.2 The learned Additional Public Prosecutor further contended that the learned trial Judge has failed to appreciate the evidence of complainant PW-5 Ishwarbhai Dhulabhai Solanki, Exh. 23, who has supported the case of the prosecution in toto. He has stated that on the date of incident, in the morning, when the deceased was going to the field for fetching the grass, the accused persons intervened and showing a chit (letter), asked the deceased as to who had written that chit to Dharmishtha and when the deceased denied of having any information, they abused him and also gave fist and kick blows. Further