STATE OF GUJARAT Vs. KARIMBHAI UMARBHAI SHAIKH

JUDGEMENT

(1.) This Appeal is filed by the appellant - State of Gujarat under Sec. 378 of the Criminal Procedure Code, 1973 against the judgment and order dtd. 28/4/1995 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No.129 of 1994 acquitting the respondent - original accused from the offence punishable under Sec. 302 and 447 of Indian Penal Code and 135 of Bombay Police Act.

(2.) The case of the prosecution in nutshell is as under:- It is the case of the prosecution that the complainant was staying with her father and children in the area known as Mafatnagar. Her brother-in-law Ibrahim, younger brother-in-law Kadharbhai, Karimbhai and Salem were also staying with their children. It is the case of the prosecution that after the marriage of younger brother-in-law, Karimbhai, the present respondent accused, after one month of her marriage life, he was not staying with his wife and he gave divorce to his wife. According to the case of the prosecution, younger-brother-in-law was not going to any job, and he was driven out of the house by her father-in- law. As respondent accused was not going to any service or business, once he was asked not to come to their house and he was not given meals. The respondent accused had beaten the complainant and her children. It is the case of the prosecution that the complainant's husband had driven out the respondent accused from house even then in absence of her husband, the respondent accused was threatening her. Before the day of incident, the respondent accused was asked by the husband of the complainant as to why he is not doing any job or business. It is further alleged in the complaint that on 10/05/1994 when the complainant and her husband after taking meals went for sleeping at about 12 midnight and while sleeping in the courtyard at about 1.30, the complainant's husband shouted for help and the accused had run away with razor after wounding the complainant's husband. The complainant's husband followed him to some distance but he could not caught him. The husband of complainant got injury on his neck. On hearing shout neighbours and other witness came there and thereafter complainant's husband was taken to hospital for treatment and during the treatment, he died. Hence, the complaint was lodged for the aforesaid offence. On the basis of the said complaint, investigation was started and after through investigation, as there was sufficient evidence against the respondents - accused persons, chargesheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Sec. 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Additional Sessions Judge, which has been numbered as Sessions Case No.129 of 1994. Thereafter, Charge was framed against the accused for the offence punishable under Sec. 302 and 447 of Indian Penal Code and 135 of Bombay Police Act. The accused persons pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. At the conclusion of the trial, the learned Additional Sessions Judge was pleased to acquit the respondent accused for the charges levelled against him. Hence, the appellant - State of Gujarat has preferred the present Appeal challenging the judgement and order of acquittal.

(3.) Ms.C.M. Shah, learned APP for the appellant State has vehemently argued that the Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence adduced by the prosecution. She has further submitted that the Sessions Judge has erred in acquitting the respondents - accused from the charges levelled against them. She has further argued that the prosecution has proved that the respondents have committed offence under Sec. 302 and 447 of Indian Penal Code and 135 of Bombay Police Act. She has further argued that Sessions Judge has acquitted the respondents accused merely on some minor contradictions and omissions in the evidence of the witnesses. She has further argued that the Sessions Judge has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. She has further argued that the offence punishable under Sec. 302 and 447 of Indian Penal Code and 135 of Bombay Police Act is made out, however, the same is not believed by the Sessions Judge. She has further argued that though the prosecution witnesses have supported the case of the prosecution, the Sessions Judge erroneously not believed their evidence and acquitted the accused. She has further argued that the Sessions Court has erroneously held that the prosecution has failed to prove the case beyond reasonable doubt and so, she has requested to allow the present appeal.