STATE OF GUJARAT Vs. ABDULGANI ISMAILBHAI PATHAN

JUDGEMENT

(1.) The appellant - State has filed the present appeal against the judgment and order, 28.3.2006, passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.12, Vadodara in Sessions Case No.128 of 2005.

(2.) The case of the prosecution is that the FIR came to be registered on 9.9.2003 by one Dhulabhai Girdharbhai, Unarmed Head Constable, City Police Station, Vadodara stating, inter-alia, that they were in the bandobast at Champaner-Bhoiwada for immersion of idol of Lord Ganesh along with other police personnel and throughout the area, the police personnel were deployed for keeping vigil over the miscreants. At the time of immersion ceremony, when the immersion proceedings was passing through ChampanerBhoiwada, nani Chhipwada at about 20.15 hours, at that time mob of 3000 persons approximately comprising of HinduMuslim gathered and started pelting stones on each other and though warning given by police personnel not to throw the stones, the mob did not respond positively and since pelting of the stones, bottles and bombs were intensified and one explosion was also took place near the police vehicle, the tear gas cell were fired at the mob, but the pelting of the stones could not be reduced. Hence, the complainant fired five rounds from his 303 revolvers in the air and as a result of which, mob started running helter-skelter and during that time, one Abdulgani Ismailbhai Pathan was caught from mob. Accordingly, complaint was lodged against 3000 strong mob under Sections 307, 143, 147, 148, 149, 332, 336 and 337 of the Indian Penal Code and under Sections 3, 4, 5 and 6 of the Explosive Substance Act and under Section 135 of the Bombay Police Act bearing C.R.No.218 of 2003.

(3.) Mr.L.R.Poojari, learned APP representing the State has vehemently contended that there is a clear error on the part of trial court in passing an order of acquittal. Learned APP has contended that though by leading detailed evidence on record the prosecution has established the case beyond the reasonable doubt, there is hardly any circumstance left upon which an order of acquittal can be passed and therefore, in the absence of any such cogent circumstance, the reasons assigned by the trial court are not palatable or germane to law and therefore, a serious error committed by the trial court in exercising jurisdiction is required to be corrected by quashing and setting aside the judgment and order of acquittal. Learned APP further contended that there is adequate material adduced before the Court to justify the guilt of the respondents accused and further, a serious offence was alleged against the respondents which could not have been brushed aside simply because some of the witnesses are not supporting the case of prosecution.