K.S. Jhaveri, J. - (1.)HEARD learned Additional Public Prosecutor Ms. Nisha M. Thakore for the appellant - State and learned Advocate Mr. Ketan A. Dave for the respondents No. 1 - 3.
(2.)BY way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 30.04.2005 of the learned Sessions Judge, Bhavnagar, in Sessions Case No. 144/1999 whereby the respondent herein was acquitted of the offences punishable under Section 302 of the Indian Penal Code. The case in brief and the incident which occurred on 11.10.1991 are as under: - -
"3.1. At about 10.00 hours in the night, Near Press Road, Small Sadak, Bhavnagar, the respondent - a Police Constable is alleged to have fired on the neck of the deceased Bipinbhai from his revolver and committed murder of the deceased. The complainant - Jayshreeben is the wife of the deceased Bipinbhai. The deceased had lodged a complaint against the present respondent and others for assaulting him. A criminal case No. 4229/87 was registered against the police officer and due to lodging of this complaint, it is alleged that the respondent herein had an enmity with the deceased. Further, it is alleged that with a view to take revenge on the deceased, the respondent on the ground of maintaining law and order situation, fired on the neck of the deceased. A complaint was lodged with the Police Station, but the same was not recorded. Thereafter, on 01.02.1992, a complaint was lodged with the Court of the learned Chief Judicial Magistrate, Bhavnagar and it was registered as Misc. Criminal Case No. 11/1992. After lodging of this complaint, the learned Chief Judicial Magistrate, Bhavnagar ordered an enquiry under Section 202 of the Code of Criminal Procedure, 1973. At the end of the enquiry, the complaint was lodged against the respondent for the offences punishable under Section 302 of the Indian Penal Code.

3.2. At the time of the trial, the prosecution examined the following witnesses: - -

The prosecution also relied upon various documentary evidence, some of them are: - -

3.3. At the end of the trial, the learned Sessions Judge, Bhavnagar, in Sessions Case No. 144/1999 passed the order as above."

(3.)LEARNED Additional Public Prosecutor Ms. Nisha M. Thakore has submitted that the learned Judge has not properly appreciated the oral as well as documentary evidence on record of the case and thereby committed an error in acquitting the respondent for the offence punishable under Section 302 of the Indian Penal Code. It is also submitted that the learned Judge has failed to appreciate the oral testimony of the wife of the deceased PW1 - Jayshreeben at Exhibit 12, PW2 - Prafulbhai at Exhibit 17, PW3 - Dharmendra at Exhibit 18, PW4 - Hareshbhai at Exhibit 19 in its proper perspective and thereby committed an error in acquitting the respondent. Further, it is submitted that the learned Judge has committed an error in giving undue advantage of self defence to the respondent herein on the ground that the deceased had caused injuries on many persons and hence, the respondent had fired on the deceased. There were many remedies available with the respondent, like calling extra police force. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned.