The appellate court emphasized that acquittals carry a presumption of innocence and that conviction can be based on credible eyewitness testimony, even if it is the sole evidence.

JUDGMENT :

A.S. Supehia, J.

Dura lex, sed lex

"The law [is] harsh, but [it is] the law."

1. The respondent - original accused, in his sunset years, is facing capital punishment for the crime, which he committed 27 years ago. Today, he is 73 years of age.

2. The present appeal filed under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C.”) is directed against the judgment and order of acquittal dated 20.04.1999 passed by Additional Sessions Judge, Gondal at Rajkot in Sessions Case No.95 of 1997.

3. The case of the prosecution, as per the charge at Exh.1, is that on 29.03.1997 at around 7:35 hours in the morning in Jetpur City at Nava Darwaja in Gondra area, near Kaccha Road, the respondent - accused murdered his wife Savitaben (deceased) by inflicting various blows of knife on account of some proceedings filed by her against him seeking maintenance. The first informant, Kanjibhai Bijalbhai Dabhi, (PW-5) is the brother of the deceased - Savitaben. The accused was arrested on 29.03.1997 i.e. on the very same day. The trial Court, after examination of both - ocular as well as documentary evidence, has acquitted the respondent - accused by giving him benefit of doubt.

4. Learned APP, while assailing the judgment of the trial Court, has submitted that the trial Court has committed grave error in disbelieving the evidence of the eyewitness, (PW-5) Kanjibhai Bijalbhai Dabhi (Exh.21) i.e. the complainant, who is the brother of the deceased and has acquitted the respondent-accused on very technical grounds. He has referred to the observations made by the trial Court in this regard. He has further submitted that the medical evidence corroborates the ocular evidence, however, the trial Court has not appropriately appreciated the same in its true perspective. He has submitted that the clothes of the accused were found with the blood stains having blood group “B”, which was the blood group of the deceased. It is submitted that the weapon - knife used by the accused for commission of the offence was also having blood group “B”. Finally, it is submitted that in fact, the accused has confessed about the commission of murder before PW-18, Dahyabhai Dudabhai Parghi (Exh.44), in the morning hours at 7 O'clock, when the accused had come to his home with blood stained knife and confessed that he has committed murder of his wife. Learned Additional Public Prosecutor has submitted that the trial Court has discarded the confession and has acquitted the accused by disbelieving it. Similarly, he has submitted that the incident, as narrated by the eyewitnesses, is also corroborated with the evidence of the Investigating Officer and PW-18, Dahyabhai Dudabhai Parghi. He has submitted that the trial Court has discarded the entire evidence on minor contradictions, which are irrelevant and hence, it is urged that the acquittal recorded by the trial Court, by giving benefit of doubt to the accused, is required to be reversed.

5. In response to the aforesaid submissions, learned advocate Mr. Khandheria appearing for the respondent - accused has urged that the present appeal may not be entertained as the trial Court, after appreciating ocular as well as the documentary evidence, has precisely acquitted the accused. He has submitted that the eye-witness is an interested witness, being cousin of the deceased, and hence, his evidence should not be believed. It is submitted that the place of the offence itself is not identified as the same does not reconcile with the version of the eye-witness.

6. Learned advocate Mr. Khandheria, has submitted that in the present case, neither the place nor the time of occurrence of offence has been proved by the prosecution. He has referred to the map of place of occurrence produced at Exh.15, and has contended that it suggests that the dead body of the deceased was found at a distance of around 108 feet on the Eastern side of the road going from Nava Darwaja towards Saran Bridge towards Gondra and the publ