Case Note & Summary
The State of Gujarat filed an appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973, challenging the judgment and order of acquittal dated 06-07-1998 passed by the learned Additional Sessions Judge, Ahmedabad (Rural), at Gandhinagar in Sessions Case No. 73 of 1996. The trial court had acquitted the respondents (original accused) of offences punishable under Sections 447, 325, 327, 302, 114 of the Indian Penal Code, 1860 and Section 34 of the Bombay Police Act. During the pendency of the trial, original accused No. 3 expired and the case against him abated. During the pendency of the appeal, respondent No. 2 (original accused No. 2) also expired, and the appeal against him was abated by order dated 03-06-2024. Thus, the appeal proceeded only against respondent No. 1 (original accused No. 1). The prosecution case was that on 08-05-1996 at around 22:30 hours, the deceased Khumaji Shivaji Thakor was assaulted by the accused with a dhariya and sticks due to a suspicion that the deceased had illicit relations with the wife of accused No. 2. The complainant Manuji Shivaji Thakor, brother of the deceased, claimed to have witnessed the incident along with Dinaji Chaturji. The deceased was taken to the hospital where he was declared dead. The trial court acquitted the accused on the ground that the prosecution failed to prove its case beyond reasonable doubt. The High Court, after re-appreciating the evidence, held that the trial court's findings were not perverse and did not warrant interference. The sole eyewitness (PW-1) was found to be unreliable as his testimony was inconsistent with the medical evidence and the dying declaration was not proved. The High Court dismissed the appeal and upheld the acquittal.
Headnote
A) Criminal Procedure Code - Appeal against acquittal - Section 378 CrPC - Scope of interference - The High Court in an appeal against acquittal should not interfere unless the findings of the trial court are perverse or based on no evidence. The presumption of innocence in favour of the accused is strengthened by acquittal. (Paras 1-22) B) Indian Penal Code - Murder - Sections 302, 325, 327, 447, 114 IPC - Appreciation of evidence - The prosecution failed to prove the guilt of the accused beyond reasonable doubt as the sole eyewitness testimony was unreliable, the dying declaration was not proved, and the medical evidence did not corroborate the oral evidence. (Paras 2-22) C) Evidence Act - Dying declaration - Admissibility - The dying declaration alleged to have been made by the deceased was not proved in accordance with law as the witness who claimed to have heard it was not examined and the declaration was not recorded by a Magistrate. (Paras 10-15) D) Bombay Police Act - Section 135 - The charge under Section 135 of the Bombay Police Act was also not proved as there was no evidence of any unlawful assembly or breach of peace. (Paras 20-22)
Issue of Consideration
Whether the judgment of acquittal passed by the learned Trial Court is perverse and requires interference by the High Court in an appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973.
Final Decision
The High Court dismissed the appeal and upheld the judgment of acquittal passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar in Sessions Case No. 73 of 1996.
Law Points
- Appeal against acquittal
- Section 378 CrPC
- presumption of innocence
- interference with acquittal only if perverse
- appreciation of evidence
- dying declaration
- oral testimony
- corroboration
- motive
- common intention
