STATE OF GUJARAT Vs. KANTIBHAI SUKHABHAI ASARI

JUDGEMENT

(1.) HEARD Ms. Krina Calla, learned APP for the appellant-State. The appeal is admitted. This is an appeal preferred under Sec. 378[1][3] of the Code of Criminal Procedure, 1973 ["code" for short] against the judgment and order of acquittal dated 28. 8. 2008 passed by the Additional Sessions Judge, Court No. 21, City and Sessions Court, Ahmedabad in Sessions Case No. 345 of 2007. Learned Sessions Judge acquitted the respondent for the offence punishable under Secs. 302, 201 and 120b as well as 114 of IPC and under Sec. 135 of Bombay Police Act.

(2.) AS per the prosecution case, a complaint was filed against the accused with Naroda police station for the offence punishable under Secs. 302, 201 and 120b as well as 114 of IPC and under Sec. 135 of Bombay Police Act. On the basis of the complaint, investigation was entrusted to the investigating officer who completed the investigation and charge-sheeted the respondent and produced him before the Judicial Magistrate First Class, Ahmedabad, who, in turn, committed the case to the Sessions Court as the case was exclusively triable by the Sessions Court. The prosecution, during the trial examined 12 witnesses and produced documentary evidence in order to establish the guilt of the respondent in the commission of offence. Learned Additional Sessions Judge, on the basis of the evidence on the record of the case held that the prosecution has miserably failed to prove involvement of the respondent in the commission of offence and as the entire link connecting the respondent with the commission of offence was not established, the learned Additional Sessions Judge acquitted the respondent for the offence punishable under Secs. 302, 201 and 120b as well as 114 of IPC and under Sec. 135 of Bombay Police Act.

(3.) MS. Krina Calla, learned APP representing the appellant State submitted that the learned Additional Sessions Judge has not appreciated the evidence on the record of the case in its true perspective. The prosecution has examined 12 witnesses and produced documentary evidence. However, the learned Judge erred in holding that there was no cogent evidence indicating the involvement of the respondent in the commission of offence and as the entire link was not established by the prosecution, the respondent was required to be acquitted. Learned APP submitted that the learned Judge has egregiously erred in holding that since most of the prosecution witnesses had virtually turned hostile and rescinded from their original version given in their statements recorded under Sec. 161 of the Code before the investigating officer, the prosecution case has become weak and thus, the learned Judge relying on the oral depositions adduced by the prosecution witnesses acquitted the respondent. Learned APP submitted that the reasoning given by the learned Addl. Sessions Judge suffers from the infirmity and, therefore, the order passed by the learned Judge deserves to be quashed and set aside and the appeal requires to be allowed.