ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

By way of this appeal under Section 378 of the Code of Criminal Procedure, 1973, the appellant-State has challenged the judgement and order of acquittal dated 15.1.1994 passed by learned Assistant Sessions Judge, Mehsana, in Sessions Case No. 72 of 1990 whereby the trial Court acquitted the respondents-original accused of the offences under Sections 147, 148, 326 r.w.s. 149 & 34, 323, 324 r.w.s. 149, 336 and 337 of the Indian Penal Code and under Section 135 of the Bombay Police Act.

2. The case of the prosecution is that on 30.10.1989 at about 13.30 hours, in front of Thakor Mavataji Karanaji in Thakor vass at village Babipura, all the accused persons, more than five in numbers, gathered and unitedly formed unlawful assembly with common intention to cause grievous injury to the complainant or persons of the complainant. The accused had armed with deadly weapons such as scythe, stick and committed riot. Accused Vajaji Gambhirji gave scythe blow on left hand of Manaji Cheharaji and caused fracture of thumb of left hand and accused Jivanji Hemaji gave scythe blow on the head and caused injuries. Accused No. 1 Vajaji Gambhirji gave scythe blow on the head of Shankarji Kanaji and caused injury. Accused Viraji Hemaji gave stick blow on the head and caused injury. Accused Chaturji Hemaji gave stick blow on the head and on left hand of Mavataji Kanaji and caused injury. Accused Manaji Viraji gave scythe blow on wrist of right hand of witness Baibaben and caused injury. All the accused persons with common intention and in furtherance of their common intention, caused injuries to the witnesses. Thus all the accused persons have committed offences under various sections of the Indian Penal Code. A complaint in that regard was filed against all the accused persons.

2.1 On the basis of the complaint, investigation was carried out. Accused persons were arrested. After completion of investigation, charge sheet was filed in the Court of learned Judicial Magistrate First Class, Kheralu. As the case against the accused persons was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions.

2.2 The trial Court framed charge against the accused persons. It was read over and explained to them. They pleaded not guilty to the charges and claimed to be tried. Hence the prosecution led evidence. Further statements of the accused were recorded.

2.3 To prove the case against the accused, the prosecution has examined the following witnesses:

1. Dr. H.M. Shroff, PW 1, at Exh. 45

2. Mavataji Karanaji, PW 2, at Exh. 51

3. Shankarji Karanji, PW 3, at Exh. 55

4. Somabhai Motibhai Prajapati, PW 4, at Exh. 56

5. Atmaram Zhaverbhai, PW 5, at Exh. 58

6. Govindbhai Naranbhai, PW 6, at Exh. 60

7. Shankarji Hemaji, PW 7, at Exh. 61

8. Kuvarji Nathaji, PW 8, at Exh. 63

9. Amarsinh Raghuji, PW 9, at Exh. 65

10. Ishwarbhai Naranbhai Patel, PW 10, at Exh. 66

11. Manaji Cheharaji, PW 11, at Exh. 68 12. Baibaben Keshaji, PW 12, at Exh. 69

13. Najim Mahmad Kalumiya, PW 13, at Exh. 70

14. Danesinh Ajitsinh Chauhan, PW 14, at Exh. 72

2.4 The prosecution has relied on the following documentary evidences:

1. Medical Certificate at Exhs. 46 to 50

2. Panchnama at Exh. 54

3. Complaint with list of documents

2.5 The trial Court, after taking into consideration the evidence produced by the prosecution and after considering the argument advanced by learned counsel for the parties, acquitted the accused of the charges levelled against them.

Hence the appellant is before us.

3. Learned APP Mr. Soni for the appellant has contended that the trial Court has committed error in acquitting the accused of the charges levelled against them. He further contended that even though the prosecution has produced ample direct and indirect evidence connecting the accused with the crime, the trial Court, without considering the same, acquitted the accused. He further contended that the trial Court has failed to consider that the accused were