JUDGMENT :

HASMUKH D. SUTHAR, J.

1) Present appeal is directed by the appellant - State challenging the judgment and order of acquittal dated 10.08.1999 passed by learned Additional Sessions Judge, Mehsana, in Sessions Case No.137 of 1998, whereby the learned Sessions Judge acquitted the accused persons - the opponents herein for the offence punishable under Sections 302, 504, 120(B), 147, 148 and 149 of the IPC and Section 135 of the Bombay Police Act.

2) Learned APP for the respondent State has stated that during pendency of the present appeal, accused – Thakore Shivabhai @ Matuji Talshija has expired and hence, present appeal stands abated qua respondent No.3 herein.

3) The brief facts of the prosecution case are that the complainant, Tejabhai Chudabhai Raval, was residing in village Chandarani of Sami Taluka and was earning his livelihood by operating a camel cart. On 09.03.1998, the complainant went to Radhanpur Ganj Bazaar carrying eight bags of chunk belonging to one Darbar Chandansinh. After unloading the goods, while returning from Radhanpur to village Chandarani, and upon reaching the area between villages Gochnad and Bismillabad, a rickshaw overtook his camel cart and proceeded towards village Bismillabad. The said rickshaw was driven by Somabhai Ravabhai Rana of village Godhana, and deceased Ramjibhai Mavjibhai Raval along with one Darbar Navalsinh Devaji were seated in it. When the complainant reached the bus stand of village Bismillabad, accused Thakore Hakaji Karamshiji (armed with a dhariya), Sonaji Talshiji Thakore (armed with a barchhi), Matubhai Talasibhai Thakore (armed with a dhariya), Kanuji Hamaji Thakore (armed with a stick), and Jayantiji Hakaji Thakore (armed with a stick) were present there. All the accused approached the rickshaw, uttered filthy abuses, and forcibly dragged the deceased out of the rickshaw. They declared that although Mavjibhai Mohanbhai Raval, the father of the deceased, had murdered Talasibhai Karamshibhai about ten years earlier and had been acquitted in that case, they intended to kill the deceased. Thereafter, all the accused assaulted Ramjibhai Mavjibhai Raval with deadly weapons and committed his murder.

4) Accordingly, FIR being C.R.No.I-25/1998 was lodged before Sami Police Station, came to be lodged. Investigation was carried out and ultimately, charge-sheet came to be filed against the accused persons for the offences punishable under Sections 302, 147, 148, 149, 120-B and 504 of IPC and Section 135 of the Bombay Police Act before the jurisdictional Magistrate. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Cr.P.C. committed the said case to the Court of learned Additional Sessions Judge, Mehsana, which came to be numbered as Sessions Case No.137/1998. Since, the accused did not plead guilty and claimed to be tried, they were tried for the said offences.

5) At the trial, in order to bring home the charges levelled against the accused, the prosecution examined 18 witnesses and also relied upon several documentary evidence.

6) At the end of the trial and after recording the statement of the accused under Section 313 of the Code, and upon hearing the arguments on behalf of the prosecution and the defence, learned trial Court acquitted present respondents – accused from all the offence vide impugned judgment and order of acquittal dated 10.08.1999 in Sessions Case No.137/1998, as mentioned above.

7) Being aggrieved by the same, the appellant – State preferred present appeal under Section 378 of the Code of Criminal Procedure, 1973.

8) Heard learned advocates for the respective parties.

9) Learned APP for the appellant – State has contended that, the learned trial Court has committed an error in acquitting the respondents – accused and not properly appreciated the evidence produced on record though the prosecution had proved case against the accused. It is also submitted that majority of the prosecution witnesses and inves