STATE OF GUJARAT Vs. SHAILESHBHAI VAHJIBHAI

JUDGEMENT

(1.) This is an application filed under Sub-sec. (3) of Sec. 378 of the Code of Criminal Procedure, 1973 praying for leave to appeal against the judgment and order of acquittal recorded by learned 6th Additional Sessions Judge, Banaskantha at Deesa, dtd. 25/10/2023, in Sessions Case No.67 of 2021, whereby respondent-accused came to be acquitted of the charge levelled against him.

(2.) Prosecution case is, in brief, as under:-

(3.) Ms.Vrunda Shah, learned APP vehemently submitted that though eye witnesses may have turned hostile, when they were cross-examined by the learned APP, they have denied certain facts to be not stated in the police statement. However, drawing the attention of the Court to the deposition of the investigating officer, it is submitted that he has very categorically deposed to before the Court that such facts were stated before the police. Therefore, according to her, deposition of investigating officer should have been believed read with the evidence of other witnesses brought on record by the prosecution. She has further submitted that since the deceased had only two injuries over head, that too, lacerated wound, it may have caused with weapon of offence but it might not have stained with blood as there was no bleeding out of the wound. Therefore if no blood stains are found over the weapon of offence i.e. pipe, it cannot be a ground to record an order of acquittal in favour of the accused. She has further submitted that when wife of the deceased, who is examined as PW-16, Pinkiben, deposed to before the Court that on receiving phone call from the husband, when she reached the place of offence, respondent-accused was hitting her husband on head with pipe. Therefore, it is submitted that her such assertion is corroborated by the deposition of Dr.Atharhussain Vahidkhan, PW-24, Exh.69, as also injuries were found and it is also corroborated by postmortem note, Exh.70. She has further submitted that final cause of death is said to be brain hemorrhage and its complications due to head injury. Thus, according to her submission, when doctor has deposed to before the Court that injuries found on the deceased were possible by muddamal pipe and those injuries are held to be fatal, accused should have been convicted for an offence under Sec. 302 of the Indian Penal Code. She has further submitted that though panch witnesses to the discovery of weapon panchnama have turned hostile, investigating officer in his deposition before the Court has stated with regard to discovery of it at the instance of the accused and, therefore, there is no reason to dis-believe the case of the prosecution.