- (1.)THIS appeal under Section 378 of the Code of Criminal procedure, 1973, is directed against the judgment and order dated 15th october, 1987, passed by the learned Additional Sessions Judge, Gondal (Rajkot) in Sessions Case No. 38 of 1986, whereby, the respondent, original accused, have been acquitted from the charges levelled against them. 1. 1. On 7th July, 1988, this Court while admitting the appeal, had issued bailable warrant in the sum of Rs. 3,000/- each, against respondents nos. 1 and 2 and with respect to respondents nos, 3 to 6, leave to appeal was refused and appeal against them was dismissed. Therefore, this appeal is heard only qua respondents nos. 1 and 2-original accused no. 1 and 2.
(2.)THE facts in brief, as emerging from the record, are as under :-
2. 1. On 2nd May, 1986, at around 0830 hours, while the complainant had reached his work place, one Kishorbhai Jivrajbhai kapadia, came there and informed him that some one is calling him near the bus-stand. Therefore, the complainant went to the said place. There he noticed that his father-Amarsinh Dhanji was lying on the ground in a pool of blood, who had already expired. On inquiry, his mother who was present at the said place, informed him that on account of some dispute with regard to construction of a cabin, a heated argument had taken place between deceased-Amarsinh Dhanji and the respondents-accused. In a fit of anger, the respondents-accused hit a spade blow on the head of Amarsinh Dhanji on account of which, he succumbed to the injuries. 2. 2. A complaint with respect to the aforesaid incident was fded by the son of the deceased before Gondal Taluka Police Station vide c. R. No. I-91 of 1986 for offences punishable u/s. 147, 148, 149, 302 and 114 of the IPC. 2. 3. Necessary preliminary investigation was carried out. 'marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. 'panchnama' of the scene of offence was done and 'muddamal' articles were collected. Inquest 'panchnama' was prepared in the presence of 'panchas'. The 'muddamal' articles so collected were sent to F. S. L. for examination. Investigation was carried out and statements of several witnesses were recorded. During the course of investigation, as sufficient material was found against the respondents, they were arrested. On receipt of the f. S. L. Report, PM report and other reports, they were kept in the investigation file. At the end of investigation, charge-sheet was filed against the respondents-accused before the Court of learned JMFC, gondal. As the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, Gondal, and it was numbered as Sessions Case No. 38 of 1986. 2. 4. Trial was initiated against the respondents-accused. During the course of trial, the prosecution has examined seventeen witnesses and had placed reliance upon several documentary evidence, more particularly, the F. I. R at Mark-A, Complaint at Mark-B, P. M. note at exhibit-23, Inquest 'panchnama' at Exhibit-25, F. S. L. Report at Exhibit-43, 'panchnama' of scene of offence at Exhibit-46. At the end of trial and after recording the statement of the respondents, original accused, under Section 313 of Cr. P. C. , the learned Sessions Judge, acquitted the respondents of the charges levelled against them. 2. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant-State has preferred the present appeal.

(3.)MR. R. C. Kodekar, learned APP, has submitted that the impugned judgment and order of the Court below is against the provisions of law; the Court below has not properly considered the evidence led by the prosecution and that looking to the provisions of law itself, it is established that the prosecution has proved the ingredients of the offence beyond doubt. 3. 1. Learned APP, has contended that from the oral evidence of pw-3 at Exhibit-18, PW-5 Narendra Karshan at Exhibit-20, the guilt of the respondents is established beyond doubt. The Court below has failed to appreciate the evidence on record, in its true perspective and has, thereby, committed serious error in acquitting the respondents from the alleged offence. Hence, the impugned order passed by the Court below deserves to be quashed and set aside,