STATE OF GUJARAT vs ADAVASI GARASIA HANSABHAI KALABHAI
- Court
- Gujarat High Court
R/CR.A/679/2004 JUDGMENT DATED: 23/10/2026
(GJHC240381012004)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 679 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
ADAVASI GARASIA HANSABHAI KALABHAI
==========================================================
Appearance:
MR TIRTHRAJ PANDYA APP ROSECUTOR for the Appellant(s) No. 1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM : HONOURABLE MR.JUSTICE SANJEEV J.THAKER
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 23/10/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE L. S. PIRZADA)
1. The present acquittal appeal has been preferred by the
State under Section 378 of the Criminal Procedure Code,
1973 (For short “Cr.P.C”), challenging the Judgment and Order
dated 15.12.2003 passed by the learned Additional Sessions
rd
Judge and 3 Fast Track Judge, Mehsana in Sessions Case
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No.117 of 2003, acquitting the respondent No.1 – original
accused for the offences punishable under Sections 302 and
397 of the Indian Penal Code and Section 135 of the B.P. Act.
2. The short facts of the prosecution case are as under:-
2.1. In the nutshell, the case of the prosecution is that the
father of the complainant was taking care of one Temple,
namely, Narshwersinh Mahadev Temple at the outskirts of
village: Rampura since last 20 years and on 25.04.2003, in the
midnight at about 3:00 to 4:00 a.m., when the deceased was
sleeping in the Temple, for the purpose of robbery, the
accused entered into the Temple and during that period, the
deceased was woke up and some scuffle had taken place and
subsequently, the accused had given a sickle blow to the
deceased and because of that, the deceased died on the spot.
Thereafter, the accused broken the Donation Box and taken
away the amount of Rs.2,171/-. At that time, notification of the
District Magistrate was also in existence and for that purpose,
a charge has been framed against the accused person for the
offence punishable under Sections 302 and 397 of the Indian
Penal Code and Section 135 of the B.P. Act.
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2.2. To prove the charge, the prosecution has examined
following oral as well as documentary evidence:-
Oral evidence
PW Name of the witness Exhibit
1 Kantibhai Dosabhai Patel 6
2 Prahladbhai Jivrambhai Patel 9
3 Rameshbhai Narandas 16
4 Vishnubhai Chandradas 18
5 Naranbhai Ishwarbhai Patel 20
6 Harish Labhubhai Ahir 23
7 Pravinpuri Shankarpuri Goswami 25
8 Sahdevsinh Bahadursinh Gohil 26
9 Rahimkhan Hussainmiya Tank 39
10 Bhikhaji Pradhanji Thakor 49
Documentary evidence
Sr.No
Particulars Exhibit
.
1. Original complaint 10
2. Original depute order 11
3. Inquest panchnama 12
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4. Original panchnama of the place of incident 13
5. Copy of police report sent for investigation
14
of dead body
6. P.M. note 07
7. Original certificate showing cause of death 08
8. Original panchnama regarding seizing of
15
clothes from the dead body of the deceased
9. Report of Pro.P.S.I regarding receipt of
20
muddamal and accused to P.I., Unjha
10. Original panchnama of seizure of muddamal
17
recovered from accused
11. Original panchnama regarding seizure of
19
clothes and body condition of accused
12. Original panchnama regarding search of
21
weapon shown by the accused used at the
time of offence
13. Copy of report of serious offence 27
14. Report regarding examination done by the
28
F.S.L. at the scene of offence
15. Copy of dispatch note sent to F.S.L.
29
regarding seized muddamal
16. Original receipt sent by F.S.L. regrading
30
muddamal received
17. Original report sent by F.S.L. Pg.5 31
18. Original serological report of F.S.L. 32
19. Copy of notification issued by the learned
33
Additional District Magistrate, Mehsana
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2.3. After the learned A.P.P. filed closing pursis, further
statement of the accused person under Section 313 of the
Cr.P.C. was recorded. The accused denied the prosecution
case thereafter, the learned trial Court has heard the
arguments of the learned advocates appearing for the
respective parties and the learned trial Court was pleased to
acquit the accused person from the charges levelled against
him.
2.4. Being aggrieved and dissatisfied with the said judgment
and order of acquittal, the appellant–State has filed the
present appeal mainly stating that the impugned judgment
and order of acquittal passed by the learned Sessions Court is
contrary to law and the evidence on record has not been
properly appreciated and that, the prosecution has proved the
charge by leading oral evidence beyond reasonable doubt. It
is further submitted that the judgment and order passed by
the learned Sessions Court is improper, bad in law, and
perverse and therefore, the impugned judgment and order
passed by the learned Sessions Court deserves to be quashed
and set aside.
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3. Heard learned A.P.P. Mr.Tirthraj Pandya for the appellant
– State.
3.1. It is submitted that the learned Sessions Court ought to
have convicted the accused on the ground that the case is
purely based on circumstantial evidence and the entire chain
of events has been proved, which has been continued and did
not break. It is further submitted that the learned Sessions
Court ought to have appreciated that PM lividity was found on
the back side of the head of the deceased, eyes were open,
tongue had come out of his mouth, there was bleeding from
the mouth and nose and various injuries were also found on
the dead body, which is sufficient to convict the accused
person.
3.2. It is submitted that deceased was killed at night, there
was no eye-witness to the incident, the entire case hinges on
the circumstantial evidence and the defense has not proved
that there was a break in the chain of evidence. It is submitted
that one Bhikhaji Pradhanji Thakor has supported the case of
the prosecution and he deposed that he was doing work of
sweeping and cleaning in the Temple. He deposed that the
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accused met him at 11:30 p.m. and demanded bed to sleep
and this itself is suffice to connect the accused with the
commission of the offence as the presence of the accused has
been established at the place of incident. It is submitted that
the evidence of Bhikhabhai is suffice enough to show that the
accused has committed murder and as per the evidence of
Bhikhabhai, on the fateful night, the accused went there and
thereby, was connected with the commission of crime
wherein, recovery of muddamal at the behest of the accused
under Section 27 of the Indian Evidence Act also leads to
show that the accused has committed the offence. However,
the learned Sessions Court has not appreciated this aspect
and passed the judgment and order of acquittal. It is
submitted that even on the clothes of the deceased, human
blood was found and on the clothes of the accused also,
human blood of group ‘B’ was found and this aspect has not
been considered. It is submitted that thus, the prosecution has
established the case beyond reasonable doubt and, therefore,
the impugned judgment and order passed by the learned trial
Court is required to be quashed and set aside and the present
respondent No.1 – original accused is required to be
convicted.
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4. As the notice is unserved upon the respondent No.1 –
original accused, nobody has appeared on his behalf.
5. We have gone through the record and, after appreciating
and re-appreciating the evidence and keeping in mind the
ratio laid down by the Hon’ble Apex Court of India while
deciding appeals against acquittal, deem it appropriate to
decide the present appeal.
6. Before dealing with the merits at this stage, we would
like to remind ourselves of the position of law settled by the
Hon’ble Apex Court in its decisions, and it would be apt to
refer to the recent decision of the Hon’ble Apex Court in the
case of Babu Sahebagouda Rudragoudar and Others v.
State of Karnataka , reported in (2024) 8 SCC 149 , wherein
it has been held as under:-
“39. This Court in Rajesh Prasad v. State of Bihar
encapsulated the legal position covering the field
after considering various earlier judgments and
held as below:
“29. After referring to a catena of judgments, this
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Court culled out the following general principles
regarding the powers of the appellate court while
dealing with an appeal against an order of
acquittal in the following words: (Chandrappa
case [Chandrappa v. State of Karnataka, (2007) 4
SCC 415]
“42. From the above decisions, in our
considered view, the following general
principles regarding powers of the
appellate court while dealing with an
appeal against an order of acquittal
emerge:
(1) An appellate court has full power
to review, reappreciate and reconsider
the evidence upon which the order of
acquittal is founded.
(2) The Criminal Procedure Code,
1973 puts no limitation, restriction or
condition on exercise of such power
and an appellate court on the evidence
before it may reach its 42. The
appellate Court, in order to interfere
with the judgment of acquittal would
have to record pertinent findings on
the above factors if it is inclined to
reverse the judgment of acquittal
rendered by the trial Court.own
conclusion, both on questions of fact
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and of law.
(3) Various expressions, such as,
“substantial and compelling reasons”,
“good and sufficient grounds”, “very
strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc.
are not intended to curtail extensive
powers of an appellate court in an
appeal against acquittal. Such
phraseologies are more in the nature
of “flourishes of language” to
emphasise the reluctance of an
appellate court to interfere with
acquittal than to curtail the power of
the court to review the evidence and
to come to its own conclusion.
(4) An appellate court, however, must
bear in mind that in case of acquittal,
there is double presumption in favour
of the accused. Firstly, the presumption
of innocence is available to him under
the fundamental principle of criminal
jurisprudence that every person shall
be presumed to be innocent unless he
is proved guilty by a competent court
of law. Secondly, the accused having
secured his acquittal, the presumption
of his innocence is further reinforced,
reaffirmed and strengthened by the
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trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal
recorded by the trial court.”
40. Further, in the case of H.D. Sundara & Ors. v.
State of Karnataka this Court summarized the
principles governing the exercise of appellate
jurisdiction while dealing with an appeal against
acquittal under Section 378 of CrPC as follows:
(SCC p. 584, para 8)
“8.1. The acquittal of the accused
further strengthens the presumption of
innocence;
8.2. The appellate court, while hearing
an appeal against acquittal, is entitled
to reappreciate the oral and
documentary evidence;
8.3. The appellate court, while deciding
an appeal against acquittal, after
reappreciating the evidence, is
required to consider whether the view
taken by the trial court is a possible
view which could have been taken on
the basis of the evidence on record;
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8.4. If the view taken is a possible view,
the appellate court cannot overturn the
order of acquittal on the ground that
another view was also possible; and
8.5. The appellate court can interfere
with the order of acquittal only if it
comes to a finding that the only
conclusion which can be recorded on
the basis of the evidence on record was
that the guilt of the accused was proved
beyond a reasonable doubt and no
other conclusion was possible.”
41. Thus, it is beyond the pale of doubt that the
scope of interference by an appellate Court for
reversing the judgment of acquittal recorded by
the trial Court in favour of the accused has to be
exercised within the four corners of the following
principles:-
41.1 That the judgment of acquittal
suffers from patent perversity;
41.2 That the same is based on a
misreading/omission to consider
material evidence on record;
41.3 That no two reasonable views
are possible and only the view
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consistent with the guilt of the accused
is possible from the evidence available
on record.
42. The appellate Court, in order to interfere with
the judgment of acquittal would have to record
pertinent findings on the above factors if it is
inclined to reverse the judgment of acquittal
rendered by the trial Court.”
7. Now, keeping in mind the aforesaid ratio and after re-
appreciating the evidence on record, it is an admitted position
that, so far as the present case is concerned, there is no eye-
witness to the incident and the case of the prosecution is
purely based on circumstantial evidence. In this regard, it is
required to consider the law laid down by the Hon’ble Apex
Court while deciding cases based purely on circumstantial
evidence, in the case of Sharad Birdhichand Sarda Vs.
State of Maharashtra reported in 1984 LawSuit (SC) 176 ,
wherein it has been held as under:-
“[150] It is well settled that the prosecution
must stand or fall on it own legs and it cannot
derive any strength from the weakness of the
defence. This is trite law and no decision has
taken a contrary view. What some cases have held
is only this where various links in a chain are in
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themselves complete, then a false plea or a false
defence may be called into aid only to lend
assurance to the Court. In other words, before
using the additional link it must be proved that all
the links in the chain are complete and do to
suffer from any infirmity. It is not the law that
where there is any infirmity or lacuna in the
prosecution case the same could be cured or
supplied by a false defence or a plea which is not
accepted by a Court.
[151] Before discussing the cases relied upon by
the High Court we would like to cite a few
decisions on the nature, character and essential
proof required in a criminal case which rests on
circumstantial evidence alone. The most
fundamental and basic decision of this Court is
Hanumant v. State of Madhya Pradesh, 1952
S.C.R. 1091. This case has been uniformly
followed and applied by this Court in a large
number of later decisions up-to-date, for instance,
the cases of (Tufall v. State of Uttar Pradesh)17,
(1969)3 S.C.C. 198 and (Ramgopal v. State of
Maharashtra) 18, A.I.R. 1972 S.C. 656. It may be
useful to extract what Mahajan, J., has laid down
in Hanumant's case (at P.P. 345.46 of A.I.R.)
(supra):
"It is well to remember that in cases
where the evidence is of a
circumstantial nature, the
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circumstances from which the
conclusion of guilt is to be drawn
should in the first instance be fully
established and all the facts so
established should be consistent
only with the hypothesis of the guilt
of the accused, Again, the
circumstances should be of a
conclusive nature and tendency and
they should be such as to exclude
every hypothesis but the one
proposed to be proved. In other
words, there must be a chain of
evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the
innocence of the accused and it
must be such as to show that within
all human probability the act must
have been done by the accused."
[152] A close analysis of this decision would show
that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court indicated that
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the circumstances concerned must or should and
not 'may be' established. There is not only a
grammatical but a legal distinction between 'may
be proved' and 'must be or should be proved' as
was held by this Court in (Shivaji Sahebrao
Bobade v. State of Maharashtra) 19, (1973)
25.C.C. 793 where the following observation were
made;
“certainly, it is a primary principle
that the accused must be and not
merely may be guilty before a Court
can convict and the mental distance
between 'may be' and 'must be' is
long an divides vague conjectures
from sure conclusions."
(2) the facts so established should be
consistent only with the hypothesis of
the guilt of the accused, that is to say,
they should not be explainable on any
other hypothesis except that the
accused is guilty,
(3) the circumstances should be of
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be
proved, and
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(5) there must be a chain of evidence
so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all
human probability the act must have
been done by the accused.
[153] These five golden principles, if we may
say so, constitute the panchsheel of the proof
of a case based on circumstantial evidence.”
8. So, considering the dictum of the Hon’ble Apex Court,
when a case is purely based on circumstantial evidence, the
prosecution has to establish the circumstances from which the
conclusion of guilt of the accused is to be fully established and
the facts so established, should be consistent with the
hypothesis of the guilt of the accused. The circumstances
should be conclusive in nature and should exclude every
possible hypothesis except the one to be proved and there
must be a complete chain of evidence of such quality that it
leads the Court to presume that the offence has been
committed by the accused only and by none else.
9. So far as the evidence is concerned, the learned
Sessions Court has recorded the oral evidence of the
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witnesses. So far as the evidence of P.W.1 – Dr.Kantibhai
Dosabhai Patel, who has performed postmortem on the dead
body of deceased and who was examined at Exh.6, is
concerned, as per his deposition, he has performed
postmortem on the dead body of Jivrambhai Joitaram Patel on
25.04.2003 at about 9:00 a.m. and he found the following
injuries on the body of the deceased:-
“(i) incised wound and occipital region and neck
posterior aspect. Size 4” x 10” x bone deep x
oblique.
(ii) incised wound on left side of lower part of
neck. Size 12” x 5” x 6” x oblique.
(iii) incised wound on right side of neck. Size 10
cm x 3 cm x 2.5 cm. ear cut x deep to
muscles.”
st
10. He also found fracture on the 1 cervical vertebra. All
the injuries were ante mortem in nature and the cause of
death, as per the opinion of the doctor, is shock due to
multiple injuries. So, considering this, it has been established
by the prosecution that the death of the deceased is a
homicidal death. Further, as per the opinion of the doctor, the
injuries were suffice to cause the death and the said injuries
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can be caused by edged weapon like sickle.
11. Another witness P.W.-2 - Prahladbhai Jivrambhai Patel,
who is the complainant and son of the deceased, has been
examined Exh.9. He is not an eye-witness to the incident in
question and he has given a complaint regarding the incident
and as per his deposition, he stated that on 25.04.2003, as per
the routine, his father went to the Temple for sleeping and
had not returned in the morning. Subsequently, the
complainant was informed that his father has been murdered
in the Temple. The same was informed to the complainant by
one Mr.Bharatbhai Bhole at about 6:00 a.m. in the morning.
Thereafter, he went there and seen the dead body of his father
and has given a complaint, which has been produced vide
Exh.10. It is an admitted position that the complaint has been
given against the unidentified people.
12. P.W.3 - Rameshbhai Narandas was examined vide
Exh.16. As per the deposition of this witness, on 25.04.2003,
he was standing near his rickshaw at Ganj Bazar, Unjha.
Thereafter, the police found him and at that time, accused –
Hansabhai Kalabhai was present there and was holding one
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‘Potlu’ (cloth bag). The search was carried out and from the
said cloth bag, an amount of Rs.1,211/- was found and from
the pocket of the accused, amount of Rs.910/- was found. The
police seized the said amount in his presence and panchnama
to that effect was produced vide Exh.17.
13. P.W.4 – Vishnubhai Bashchandra Das, who was a panch-
witness, was examined vide Exh.18. As per his deposition, the
police has seized the clothes of accused – Hansabhai in his
presence and on the sleeves of his shirt, bloodstain was found.
The panchnama regarding seizing of clothes has been
produced vide Exh.19.
14. P.W.5 – Naranbhai Ishwarbhai Patel, who was also a
panch-witness of the panchnama, drawn under Section 27 of
the Indian Evidence Act, was examined at Exh.20. As per the
deposition of this witness, on 25.04.2003 , the police called
him and in the police station, accused – Hansabhai Kalabhai
was present and he stated that he wanted to show the weapon
used in the commission of crime and thereafter, the panchas,
police and the accused went to the Narshwersinh Mahadev
Temple and on the left side of the Temple, there is another
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Temple of Meldi Mata and under the benches in the compound
of the Temple of Meldi Mata, one sickle was found, which has
been shown by the accused and was seized by the pol i ce and
bloodstain was found on the sickle. The panchnama in that
regard has been drawn and produced vide Exh.21.
14.1. In the cross-examination, the said witness stated
that he was knowing the accused prior to the incident and
that, he was called by the police at about 4 o’clock.
15. Another witness P.W.-6 - Harish Labhubhai Ahir has been
examined vide Exh.23, who is a police personnel. As per his
deposition, he was on duty at Unjha Police Station from 11:00
p.m. on 24.04.2003 till 5:00 a.m. on 25.04.2003 in a mobile
van. They had checked the railway station, bus station, guest
houses and hotels in Unjha. At about 4 o’clock, when they
returned to the main gate of the market at Unjha, one person
was found with a ‘potla’ and upon suspension upon that
person, they asked him what was in the bag and he stated that
it is cumin. When they tried to open and check the bag, the
said person tried to run away. He was immediately
apprehended and he stated that he had broken the lock of a
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grocery shop. Upon asking his name, he stated that his name
was Hansabhai Kalabhai and amount of Rs.2,171.50 ps. was
found. When they were taking the accused to the police
station and on the way, a person from Narshwersinh Mahadev
Temple met them and informed the police about the incident
that had taken place at the Temple and out of that, one person
identified the accused and, at that time, the accused told that
he had asked for the keys of the compound from the deceased
but, he had refused and that is why, he had given a sickle blow
on the deceased. He had concealed the sickle and pursuant to
that, he was arrested. He had intimated P.I., Unjha about the
incident.
16. Thereafter, so as far as the main witness is concerned i.e
Bhikabhai Pradhanji Thakore, who had claimed to be the
witness, who saw the accused and deceased in the Temple on
the night of incident, has been examined as PW-10 at Exh.48.
As per his deposition, he stated that he was employed at
Narshwersinh Mahadev Temple, Unjha and at that time,
Eklingji Maharaj was present in the Temple. Further, he stated
that on the night of the incident, he was sleeping outside the
Temple. Thereafter, at about 11:30 p.m., one person, who had
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earlier been working in the Temple, came and asked for meal.
Deceased - Jivrambhai and the said witness gave meal to that
person and the person also asked them to arrange a bed, as
he wanted to stay there for the night. Thereafter, at that time,
the said witness, deceased and the accused were there and
this witness has identified the accused in the Court.
Thereafter, he slept beside the accused outside the Temple
premises. In the morning, when one person came to offer
prayers at the Temple, he woke up. He informed about the
incident and thereafter, he intimated the trustees.
Subsequently, the complaint was given. The said witness was
cross-examined by the defence counsel and it was submitted
that it was true that the accused used to come to the Temple
for labour work. Further, he admitted that it is true that he
was knowing Hansabhai since last two years. Further, he also
admitted that he had not seen the incident.
16.1. In his cross-examination, the said witness also
admitted in the statement before the police that he had seen
the accused for the first time at the police station, when asked
his name, the accused had stated his name as Hansabhai
Kalabhai. Considering this, now the main question is that so
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far as the main witness – PW-10 - Bhikhaji Thakor is
concerned, who as per the case of the prosecution, had seen
the accused at the place of the incident. As per his deposition,
he specifically stated that he was sleeping beside the accused
and had known the accused since last two years. In spite of
the fact that the accused had committed the crime, he was not
aware of the incident. In the morning, somebody woke him up
and at that time, he came to know about the incident. After
the incident in question, he was found missing. So, the
deposition of this witness does not inspire confidence and his
deposition is not trustworthy or reliable. Further, the accused
was apprehended by the police at 4:00 a.m. and an amount of
Rs.2,171.50 ps. was seized as per the deposition of PW - 6 -
Haresh Ahir. As per the deposition of Sahdevsinh Bahadursinh
Gohil, he had apprehended the accused, but he has not stated
that a panchnama was drawn at that time. So, he deliberately
not made any statement regarding drawing of the panchnama.
As per the deposition of the panch witness i.e. P.W.-3 -
Rameshbhai Narandas, rickshaw driver, a panchnama was
drawn, which has been produced at Exh.17 but, nothing has
been stated by witness - Harish Ahir – PW-6.
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17. Further, so far as the submission made by the learned
A.P.P. regarding the recovery of the weapon is concerned, it
cannot be termed as a recovery panchnama or it cannot be
termed as panchanama under Section 27 of the Evidence Act
as the sickle was recovered from a public place and was in
public view. As per the panchnama, the sickle was found in an
open place under a bench in the compound of Meldi Mata
Temple and thus, it was in a public place. So, it cannot be
termed as a panchnama under Section 27 of the Indian
Evidence Act. Further, so far as the another argument of the
learned A.P.P. regarding the bloodstains found on the sleeves
of the shirt of the accused is concerned, as per Exh.32 -
serological report, on the dhoti and the control soil at the
scene of the incident, a Group ‘B’ blood was found but, the
police did not take care of the blood groups of the deceased as
well as the accused. The blood group of the deceased
remained undetermined and thus, no sufficient blood sample
was found. In spite of the fact that, as per Exh. 32 i.e. the
serological report, even the Group B blood was found on the
sickle and the clothes of the deceased but, it was not
confirmed that the blood group of the deceased was of Group
‘B’. Even the sample of the blood of the accused was not taken
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for determining whether his blood group was of Group ‘B’.
18. Considering the aforesaid evidence, in the case of
circumstantial evidence, the chain of circumstances has not
been completed. The star witness - Bhikhaji is also not found
to be reliable and trustworthy. Considering these aspects, the
learned Sessions Court has come to the conclusion that the
charges against the accused have not been proved by the
prosecution beyond reasonable doubt as the main star witness
was found to be unreliable and untrustworthy. Considering the
fact that, in the morning, when witness - Bhikhabhai was
awakened by some person, he had not stated anything about
the incident, which had taken place during the night as the
accused had come and asked for a meal and had also
requested them to arrange for bed. Thereafter, the accused
had fled away and these facts were not disclosed and because
of that, the complainant had given a complaint against the
unidentified person. Considering this, the findings recorded
by the learned trial Court are just and proper.
19. Thus, his conduct is found to be very unnatural, and
looking to the overall evidence on record, the prosecution has
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failed to prove the circumstances beyond reasonable doubt.
From the evidence, it cannot be said that the evidence is of
such a degree as to lead the Court to presume that the offence
has been committed by the accused persons only and by no
one else. Therefore, the prosecution has failed to complete the
chain of circumstances so as to connect the accused with the
crime.
20. Considering this, the offence recorded by the learned
Sessions Court is just and proper. The prosecution has not
proved the charge beyond reasonable doubt.
21. After re-appreciating and re-examining the evidence on
record, we could not find that there is an error of law
committed by the learned Trial Court while acquitting the
accused and as such, the findings recorded are neither
perverse nor erroneous, whereby, no interference, as such is
required by this Court while exercising its appellate power
under Section 378 of Criminal Procedure Code, 1973.
22. Thus, after going through evidence and its re-
appreciation as well as reasons assigned by learned Sessions
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Court, the prosecution has failed to prove the charges against
accused which are just and proper and we are in complete
agreement with reasons assigned by the learned Sessions
Court while acquitting accused.
23. Considering the evidence on record, in light of the
decisions of the Hon’ble Apex Court as reproduced
hereinabove, we are of the opinion that no error has been
rd
committed by the learned Additional Sessions Judge and 3
Fast Track Judge, Mehsana, in Sessions Case No. 117 of 2003
while acquitting the respondent No.1 - original accused.
24. The present appeal is devoid of any merit and is
accordingly dismissed.
25. The impugned judgment and order dated 15.12.2003
rd
passed by the learned Additional Sessions Judge and 3 Fast
Track Judge, Mehsana in Sessions Case No. 117 of 2003,
acquitting the accused from the offences punishable under
Sections 302 and 397 of the Indian Penal Code and Section
135 of the B.P. Act is hereby confirmed.
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26. Bail bond, if any, shall stand cancelled. The Record &
Proceedings, if any called for, be sent back to the concerned
learned Sessions Court forthwith.
(SANJEEV J.THAKER,J)
(L. S. PIRZADA, J)
Hitesh
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