STATE OF GUJARAT Vs. SHAMJI LAKHMAN NAKUM

JUDGEMENT

(1.) The appellant - State has filed the present criminal appeal under Section 378 of the Cr.P.C. against the judgment and order, dated 25.4.2006, passed in Sessions Case No.5 of 2005, by the learned Additional Sessions Judge, Fast Track Court No.2, Jamnagar whereby, the trial court has been pleased to acquit the respondents accused from the charges for which they have been tried.

(2.) The facts leading to the rise of prosecution case is that complainant - Hiralal Babulal Nakum was standing near the pan shop in Balnath chowk with Gopal Babu and Kantilal Jayantilal at about 7.00 to 7.30 p.m. in the evening. At that time the brother of the complainant Mahendra came there on motorcycle. They heard the shouts from the place near shop of Mavjibhai - accused No.4 and one child accused Vimal Shamji were catching hold of the brother of the complainant Mahendra and in that process, accused Nos.1, 2 and 3 were giving knife blows on the chest and abdomen. The case of the prosecution further is that accused No.2 inflicted 3 blows on the body of the victim and two blows were given on right side and one blow was given on the left side. At that time Shamji Daya Parmar and his son Jayesh intervened but, on account of infliction of blows, the brother of the complainant Mahendra was profusely bleeding on the spot and on account of persons gathered, respondents accused ran away with their knife. The injured Mahendra was taken immediately to G.G.Hospital in auto rickshaw. But by that time deceased Mahendra succumbed to the injuries where hospital people declared him dead. During the transit to G.G.Hospital, deceased Mahendra was not in a position to speak. But it appeared that on account of the dispute related to road near the field and the accused were not allowing the complainant to use the road. Despite the compromise, said dispute as per the case of prosecution has led the present incident in question. This attack on deceased Mahendra has caused the death which has resulted into filing of complaint before the City A Division Police Station, Jamnagar which was registered as C.R.No.348 of 2004 which was later on inquired into.

(3.) Ms.Hansa Punani, learned APP for the appellant- State has vehemently contended that while passing the judgment and order, a serious error is committed by the trial court and such material error in appreciation of evidence is required to be corrected by quashing and setting aside the judgment and order of acquittal. Learned APP has submitted that the prosecution has proved the case beyond reasonable doubt by leading evidence in the form of ocular as well as documentary evidence and according to learned APP, such evidence is unimpeachably connected the crime with respondents accused and therefore, the trial court has not correctly appreciated the evidence as a whole. Ms.Punani has further submitted that the ocular evidence is in consonance with the medical evidence and there is no conflict between such evidence which may lead to raise any suspicion. On the contrary, the injuries have been well explained by the prosecution which has been corroborated by medical evidence. Ms.Hansa Punani has submitted that eye witness to the incident, namely, PW-1 - Hiralal Babulal, who was complainant and who sustained injuries which are very much reflected in postmortem note which are substantiated by medical opinion and in addition thereto, PW-20 and PW-22, namely, Gopalbhai Babubhai and Kantilal Jayantilal respectively have clearly supported the case of prosecution, who happened to be the eye witnesses and therefore, the trial court has completely misread the evidence in passing the ultimate order. Ms.Punani has further contended that the panchnama of scene of offence and serological report is clearly establishing the role played by respondents accused in commission of crime. It has also been pointed out that the recovery which has been made during the course of investigation has also been proved which in no circumstance raises any doubt against the case of prosecution and therefore, when such a situation prevailing on record, there was hardly any justifiable reason for the trial court to pass an order of acquittal and therefore, such serious error committed by the trial court deserves to be corrected.