KOLI BHIMA HARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application is filed by the applicants-accused for releasing them on bail during the pendency and final disposal of Criminal Appeal No. 1058 of 1992 filed by the State against the judgment and order of acquittal passed by the learned Sessions Judge, Surendranagar, dated 5- 8-1992. On 5-4-1993, while admitting the appeal, this Court issued non-bailable warrants against the present applicants-accused and pursuant to the said order they were taken into custody. Therefore, this application is filed by the applicants-accused fur releasing them on bail. .... ..... .... ....

(2.) While admitting the appeal we had gone through has the R and P and also the reasons assigned by the learned Judge for convicting the accused. Prima facie we were of the view that the reasons for acquittal are flimsy and they cannot be called as reasons, apart from good reasons, in the eye of law. The same are not at all sustainable in view of the evidence on record of this case, which is clearly against the accused and lead to the only conclusion that the accused are guilty of committing murder of Labhuben. The learned Judge has held that the prosecution failed to prove that it was a homicidal death, though there was overwhelming evidence to the contrary. According to him it was a suicidal death, for which there is no evidence on the record. It is a case of circumstantial evidence; the chain of circumstances is complete and no link is missing. The conduct of the accused is an important circumstance against them. Under these circumstances while admitting the State Appeal against the order of acquittal, we had exercised our power and ordered issue of non-bailable warrants. We were also fully conscious that the trial Court on appreciation of evidence has acquitted the accused. But, in the case on hand, if we had not exercised our power and not issued non-bailable warrants, we would have failed in our duty. Section 390 of Cr. P. C. is meant to be exercised in such cases, where the trial Court materially erred in acquitting the accused. The increasing rate of bride burning cases are causing great alarm and concern to one and all in society. The learned Judge has completely lost the distinction between mere doubt and reasonable doubt. Mere doubt in a criminal case would not entitle the accused for acquittal. Perhaps, there may not be any criminal case in which some doubt, at some stage, may not be sought to be raised. It does not mean that if, on some minor point, some doubt arises, then Court must acquit the accused. The doubt should be a reasonable doubt. Only when a reasonable doubt arises in the case, then and only then, the benefit should be given to the accused by the Court. Otherwise not.

(3.) We may make it clear that while issuing non-bailable warrant we had not given any reason, but Mr. Kella, learned Advocate insisted that this Court should give reasons. It may be also be stated that Mr. Kella also insisted that this Court should deal with the evidence. But we have refused to do so because any further discussion of the evidence at this stage is likely to prejudice the case of the accused at the time of final hearing of the appeal. We also make it clear that our above observations in this order regarding the order of the learned Judge are prima facie observations. It goes without saying that we have not concluded any issue against the accused.