STATE OF GUJARAT Vs. ASAFAFKHAN KALANDARKHAN

JUDGEMENT

(1.) The present appeal is an appeal under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order of acquittal passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Narol dated 21.3.1986 in Sessions Case No.44 of 1985.

(2.) By the impugned judgment, learned trial Judge has acquitted all three accused from the charge of offence punishable under Sections 302, 120-B and 201 of Indian Penal Code and also from the charge of offence punishable under Section 25-A of the Indian Arms Act committing murder of deceased Firozbhai Abdul Latif by firing gun on the right side of his chest when he was in the motor car of accused No.3 and probably under the influence of alcohol in early hours on 21.2.1984.

(3.) Learned APP Mr.K.C.Shah has taken us through various grounds of challenge mentioned in para 4 of the memo of appeal as well as the judgment. In nutshell, the say of learned APP Mr.Shah is that finding arrived at by the trial Court is based on erroneous appreciation of oral as well as documentary evidence available on record and some palpably wrong inferences have been drawn which can be said to be conjectures. The admissible and trustworthy evidence though available on record has been ignored conveniently by the learned trial Judge and while recording acquittal, the trial Court has mainly hammered on hypothesis of innocence of accused and even the learned trial Judge has held erroneously that the prosecution has not even proved that the death of deceased Firozbhai is homicidal death. It is wrongly observed that the death may be accidental. When it is not found proved beyond reasonable doubt that the death of deceased Firozbhai is homicidal death and not accidental death, it would not be legal for the trial Court to link all the accused with the crime punishable under Section 302 IPC or charge of criminal conspiracy. Mr.Shah has developed various points during his oral submissions and the arguments advanced by Mr.Shah have been responded by the learned counsel appearing for all three respondents (hereinafter referred as "original accused Nos.1, 2 and 3 respectively for short). Ms.Ami Yagnik has placed the case of accused No.1, Mr.Champaneri has argued for accused No.2 and Mr.E.E.Saiyed made his submissions for accused No.3.