Case Note & Summary
The State of Gujarat filed an appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 15-02-1997 passed by the learned Additional Sessions Judge, Kheda at Nadiad in Sessions Case No. 64 of 1992. The respondent, Sikandarbhai Usmanbhai Kasai, was acquitted of the charges under Sections 302 and 114 of the Indian Penal Code, 1860. The case arose from an incident on 08-05-1992 at around 19:30 hours, where the deceased Munawarkhan Bhulekhan Pathan was allegedly caught hold of by the accused, and the accused's younger brother (a juvenile) gave a knife blow on his left thigh. The deceased succumbed to injuries in the hospital. A complaint was lodged by Kalukhan Gulabkhan, the uncle of the deceased, at Matar Police Station under Sections 302 and 34 IPC, registered as I-C.R.No. 148 of 1991. After investigation, a charge-sheet was filed, and the case was committed to the Sessions Court. The trial court acquitted the accused, leading to the present appeal. The High Court examined the evidence, including the dying declaration and the testimony of witnesses. The court found that the dying declaration was not recorded by a Magistrate and contained contradictions, making it unreliable. The last seen theory was not sufficiently established. The court held that the trial court's findings were not perverse and that the prosecution failed to prove its case beyond reasonable doubt. Consequently, the appeal was dismissed, and the acquittal was upheld.
Headnote
A) Criminal Law - Appeal against Acquittal - Section 378 CrPC - Scope of interference - The High Court in an appeal against acquittal will not interfere unless the findings of the trial court are perverse or based on no evidence. The presumption of innocence in favor of the accused is strengthened by acquittal. (Paras 1-17) B) Evidence Law - Dying Declaration - Reliability - A dying declaration must be free from tutoring and corroborated by other evidence. In the present case, the dying declaration was not recorded by a Magistrate and there were contradictions, making it unreliable. (Paras 8-12) C) Criminal Law - Last Seen Theory - Applicability - The last seen theory alone is insufficient to convict unless the time gap is short and there is no possibility of any other person intervening. Here, the evidence of last seen was weak and uncorroborated. (Paras 13-15)
Issue of Consideration
Whether the judgment of acquittal passed by the trial court is perverse and liable to be set aside in appeal under Section 378(1)(3) of CrPC.
Final Decision
The appeal is dismissed. The judgment and order of acquittal dated 15-02-1997 passed by the learned Additional Sessions Judge, Kheda at Nadiad in Sessions Case No. 64 of 1992 is confirmed.
Law Points
- Appeal against acquittal
- Section 378 CrPC
- presumption of innocence
- corroboration of evidence
- dying declaration
- last seen theory
