STATE OF GUJARAT Vs. GULSHANBEN W/O KADARBHAI

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 16.5.2006, passed in Sessions Case No.3 of 2006, by the learned Additional Sessions Judge, Fast Track Court No.2, Amreli 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 the case of prosecution is that deceased Salim was the son of accused No.1 and brother of accused No.2 and he was mentally unfit and was staying with accused Nos.1 and 2. It is the case of prosecution that on 14.8.2005 at about 9.00 hours, deceased Salim was behaving in an abnormal manner and was therefore, beaten up by accused No.1. That accused No.1 got enraged and caused murder of deceased Salim by throttling and for that, accused No.2 has helped and subsequently, the dead body of Salim was buried in one corner of the street and thereby, further committed an offence of destroying an evidence. It is further the case of prosecution that both the accused persons in connivance with each other have caused murder and therefore, a complaint came to be lodged at Babara Police Station for the offence punishable under Sections 302, 201 r/w Section 114 of the IPC and the same was registered as IC.R.No.69 of 205

(3.) Ms.Hansa Punani, learned APP for the appellant State has vehemently contended that the judgment and order passed by the trial court suffers from the legal infirmity and the finding arrived at is perverse to the record. Learned APP has submitted that the prosecution has examined as many as 10 witnesses and produced 14 in numbers the documentary evidence to prove the case beyond reasonable doubt and majority of the witnesses have consistently supported the case of prosecution and therefore, to disbelieve the case is nothing but reflection of clear non-application of mind on the part of trial court. Learned APP has further contended that even if there may not be an eye witness to the incident in question but if the circumstantial evidence is completing the connectivity with the respondents accused about commission of crime then, even if no eye witness, the Court can pass an order of conviction. Learned APP has further contended that the statement of PW-8 Yunusbhai Kasambhai, who is examined at Exh.27, ought to have been examined in true perspective and such extra judicial confession could not have been overlooked by the trial court. In fact, that should have been utilized to cull out the truth about the incident in question. Having not undertaken such exercise, the jurisdiction appears to have not been exercised in a just and legal manner. It has also been contended by learned APP that in such a serious incident by way of brief order, an order of acquittal came to be passed and so much so that the judgments which have been cited by learned counsel for the respondents whether applies to the background of present facts, has also not taken care of to deal with and therefore, overall exercise of jurisdiction is establishing that the cursory observation is made just with a view to give a benefit of doubt.