The State Of Gujarat vs Thakore Joitaji Kanaji & ... on 26 March, 2015

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Gujarat High Court

The State Of Gujarat vs Thakore Joitaji Kanaji & ... on 26 March, 2015

Bench: Z.K.Saiyed

          R/CR.A/464/2005                                    JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       CRIMINAL APPEAL NO. 464 of 2005

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE Z.K.SAIYED
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1     Whether Reporters of Local Papers may be allowed to see
      the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law as
      to the interpretation of the Constitution of India or any order
      made thereunder ?

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               THE STATE OF GUJARAT....Appellant(s)
                              Versus
        THAKORE JOITAJI KANAJI & 1....Opponent(s)/Respondent(s)
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Appearance:
MS. HANSA PUNANI, APP, for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1 - 2
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          CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

                              Date : 26/03/2015
                              ORAL JUDGMENT

[1] The present acquittal Appeal has been filed by the appellant - original complainant, State of Gujarat under Section 378(1)(3) of the Cr. P.C., against the Judgment and order dated 20.07.2004 rendered by the learned Additional Sessions Judge, 6th Fast Track Court, Mahesana, in Sessions Case No.128 of 2001. The said case Page 1 of 8 R/CR.A/464/2005 JUDGMENT was registered against the present respondentsoriginal accused for the offences punishable under Sections323, 328, 447, 504 and 34 of the Indian Penal Code.

[2] According to the prosecution case, on 18.04.2001 when the complainant was working in her vada, the respondentsaccused illegally entered in the vada of the complainant and raised dispute with regard to grass/cattle food and asked the complainant that why they were giving filthy abuses to us and thereby illegally entering into the vada of the complainant and committed an offence. It is further the case of the prosecution that due to aforesaid dispute, quarrel took place and during the said quarrel, accused No.2 caught hold of the complainant and accused No.1 brought poisonous bottle from his house and forcefully poured in the mouth of the complainant with an intention to end her life. Further, at same date, place and time, the respondentsaccused with clear intention to fulfill their motive gave kick and fist blows to the complainant and thereby committed offene under Sections 328, 323, 504, 447 and 34 of the IPC. As a result of which, the complaint was filed by the complainant before the Mehsana Taluka Police Station, which was registered as C.R.No.187 of 2001. Then, investigation was carried out and statements of the witnesses were recorded. Panchnama of place of offence was drawn. Panchnama of physical condition of the complainant was drawn. Then, injured complainant obtained treatment in the Civil Hospital, Mehsana and certificate from the doctor was also obtained. Then, recovered muddamal was sent to FSL. Then, chargesheet was filed against the respondentsaccused before the learned Judicial Magistrate Fist Page 2 of 8 R/CR.A/464/2005 JUDGMENT Class, Mehsana. As the said offences were exclusively triable by the Sessions Court, learned Chief Judicial Magistrate, Mehsana, committed the said case to the learned Additional Sessions Judge, 6th Fast Track Court, Mahesana, which was numbered as Sessions Case No.128 of 2001.

[3] On the basis of above allegations, charge was framed vide Exh.7 and readover and explained to the accused for the offence punishable under Sections 328, 323, 504, 447 and 34 of the IPC of the Indian Penal Code. Then, plea was recorded vide Exh.8 and 9 and respondentsaccused pleaded not guilty to the charge and claimed to be tried.

[4] In support of the prosecution case, prosecution has examined four oral evidences : Sr. Exh. Name of Witness No. 1 12 Doctor Kantilal Babaldas Patel 2 14 Manubhai Ishwarbhai Patel 3 17 Vasudev Baldevbhai Patel 4 19 Gitaben Dashrathbhai Patel 5 21 Dashrathbhai Mohanbhai Patel 6 27 Doctor Suresh Raychandbhai Patel 7 29 Jagasinh Mohansinh Sodha [5] In support of the prosecution case, the prosecution has produced several documentary evidences like depute order at Exh.22, complaint at Exh.20, panchnama of place of offence at Page 3 of 8 R/CR.A/464/2005 JUDGMENT Exh.15, panchnama of physical condition of complainant at Exh.16, certificate of treatment of Civil Hospital, Mehsana at Exh.13, treatment certificate of doctor Sureshbhai Patel at Exh.28, letter of FSL, Ahmedabad at Exh.23, ravangi note at Exh.24 and report of FSL at Exh.25.

[6] Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section313 of the Code of Criminal Procedure, 1973 were recorded. The respondents accused disclosed that they were innocent and wrong complaint has been filed against them. They denied the case of the prosecution and submitted that a false case is filed against them.

[7] Then, arguments of both the parties were heard. After considering the defence version of the respondentsaccused, the learned trial Judge passed the acquittal order in favour of the respondentsaccused.

[8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 20.07.2004 rendered by the learned Additional Sessions Judge, 6th Fast Track Court, Mahesana, in Sessions Case No.128 of 2001, the appellant-State has preferred the present appeal before this Court.

[9] Heard Ms.Hansa Punani, learned Additional Public Prosecutor for the appellantState. Though, served to respondents accused, but they did not appear before the Court in person nor they engaged any advocate on their behalf.

[10] Ms. Hansa Punani, learned Additional Public Prosecutor for the appellant-State contended that as per the charge, the Page 4 of 8 R/CR.A/464/2005 JUDGMENT prosecution proved its case beyond reasonable doubt through oral version of complainant PW4Gitaben Dashrathbhai Patel at Exh.19 and husband of the complainant PW5Dashrathbhai Mohanbhai Patel at Exh.21. She contended that the certificate given by Doctor Sureshbhai Patel of Nirav Hospital at Exh.28 is supported by his oral evidence at Exh.27. She further contended that contents of panchnama is proved through oral versions of the panchas PW2 Manubhai Ishwarbhai Patel and PW3 Vasudevbhai Baldevbhai Patel at Exh.14 and 17. She submitted that in support of the case of the prosecution, the prosecution produced circumstantial evidence i.e. FSL Report at Exh.25 before the learned trial Judge, but the learned trial Judge did not consider the same and wrongly acquitted the respondentsaccused. Further, from the evidence of the prosecution, it is proved that respondentsaccused entered into Vada of the complainant and they tried to abuse her and they tried to pour poisonous liquid in her mouth, is supported by the husband of the complainant. She then argued that the learned trial Judge committed a grave error in acquitting the respondentsaccused in such a serious offence. Lastly, she prayed to allow this appeal and set aside the judgment and order of acquittal.

[12] I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of prosecution witnesscomplainant and also perused the charge framed against the respondentsaccused. I have also considered the submissions made by learned advocate for the parties.

[13] Fist of all, I have perused the contents of the complaint at Exh.20 and in support of the complaint, evidence of complainant Page 5 of 8 R/CR.A/464/2005 JUDGMENT PW4Gitaben Dashrathbhai Patel at Exh.19 and evidence of her husband of the complainant PW5Dashrathbhai Mohanbhai Patel at Exh.21. Primafacie, it appears that what was deposed by the complainant is her oral version is not tallied with the contents of the complaint at Exh.20 lodged before the police. Versions of the complainant and her husband are also contradictory to each other. As far as the offence under Section328 of IPC and ingredient of Sections447, 504 and 323 are concerned, its definition is provided is Section321 of IPC, which reads as under: "321 Voluntarily causing hurt. Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

[14] As per the allegation of the complainant, there was common intention of the respondents-accused, so, ingredient of Section-34 is also required to be considered in light of evidence produced by the prosecution. It was apprehended by the complainant Gitaben that from her Vada someone might have taken away her sheaf and therefore, she was abusing. At that time, both the respondents-accused came to the Vada and asked her that why she was abusing. So, the complainant told that she did not abuse them. Then, quarrel took place between the complainant and the respondents-accused and the respondents-accused poured poisonous liquid in mouth of the complainant. Further, I find that the evidence of the complainant is not reliable as the complainant has made contradictory statements in her examination in chief and in cross-examination. I have minutely perused the judgment and order of the learned trial Judge. It is true that Medical Officer disclosed his evidence in support of the case of the prosecution to some extent, but the complainant and her husband, who are relevant witnesses of the prosecution case, could not prove the alleged charge levelled against the respondents-accused. Learned trial Judge has rightly observed that the prosecution could not prove its case beyond reasonable doubt. In view of the above observations made by Page 6 of 8 R/CR.A/464/2005 JUDGMENT the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondents-accused. There in no substance in the appeal and the arguments made by the learned Additional Public Prosecutor. Though learned Additional Public Prosecutor. has tried to establish her case, but the Court has not found any sufficient evidence to consider and entertain this appeal.

[14] In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

[15] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal Page 7 of 8 R/CR.A/464/2005 JUDGMENT are well settled.

[16] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 20.07.2004 rendered by the learned Additional Sessions Judge, 6th Fast Track Court, Mahesana, in Sessions Case No.128 of 2001, acquitting the respondents- accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.

(Z.K.SAIYED, J.) siddharth Page 8 of 8

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