Gujarat High Court
Narayanbhai Karsanbhai vs State Of Gujarat & 5 on 9 September, 2015
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.RA/780/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 780 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NARAYANBHAI KARSANBHAI....Applicant(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR PRATIK B BAROT, ADVOCATE for the Applicant(s) No. 1
MS NITA C BANKER, ADVOCATE for the Applicant(s) No. 1
MR GIRISH D CHAVDA, ADVOCATE for the Respondent(s) No. 2 - 6
MR HARNISH V DARJI, ADVOCATE for the Respondent(s) No. 2 - 6
MS MOXA THAKKAR APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 09/09/2015
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R/CR.RA/780/2004 JUDGMENT
ORAL JUDGMENT
The petition has been instituted against the judgment and order dated 30/09/2004 passed by the learned Additional Sessions Judge, Viramgam in Special Atrocity Case No.70 and 71 of 1998 which were tried together.
2. The offences alleged in the complaint were under Sections 147, 148, 149, 325, 324, 323, 504, 506(2) and 120B of the Indian Penal Code and under Section 135 of the Bombay Police Act. It was alleged that when the complainant and his nephew-Danabhai were standing outside the Panchayat office on 20/07/1996, the accused cordoned them and after reprimanding the complainant having deposed against him in some case, snatched away the umbrella held by the said Danabhai and assaulted him on the right eyebrow, which started bleeding and at that point of time, other accused armed with stick arrived and accused-Manubhai is said to have assaulted Danabhai on his waist, causing fracture and accused- Parshottambhai Maghabhai also assaulted Danabhai on his right arm and little finger of the left hand with stick and accused-Mithabhai assaulted him on left knee. Likewise, various acts of assault were attributed to different accused.
2.1 It was the case of the complainant that because of intervention of other people, the complainant and Danabhai were saved and since the Police personnel were present at Kamijala Gram Panchayat Office, they had rushed to scene of offence, Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Sep 12 01:45:10 IST 2015 R/CR.RA/780/2004 JUDGMENT because of which the complainant and witness were helped to the Hospital at Viramgam and complaint was given.
2.2 The complaint was registered and after necessary procedure and investigation, initially, two different chargesheets were laid and therefore, different cases were registered being Special Case No.70 and 71 of 1998 as aforesaid. One of the case, which was registered as Sessions Case No.70 of 2003 was initially registered under the provisions of the Indian Penal Code and on committal it was tried as Special Case alongwith other case which was lodged also under the provisions of the Atrocities Act.
3. On conclusion of the evidence from the prosecution side, the statement of accused under Section 313 of the Code of Criminal Procedure was recorded and ultimately on appreciation of evidence and hearing the parties, the trial Court noticed the material omission i.e. it reasoned that the deposition of the witness did not tally with the material on record and the evidence as to injuries was deficient in material particular visavis medical record; that in absence of the evidence of the blood at the scene of offence, the case of the witnesses as to bleeding injuries could not be established and that there was delay in lodgment of the FIR giving a big room for manipulation to the complainant and that the complainant and the witness who knew the accused did not name them on the first opportunity when the Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Sep 12 01:45:10 IST 2015 R/CR.RA/780/2004 JUDGMENT history of the incident was recorded by the doctor. The trial Court also found that there was admitted enmity between the complainant, witnesses and the accused and that they were rival groups in the Panchayat Election.
4. The said judgment is sought to be assailed mainly on the ground that the medical evidence supports the injuries as per the evidence of the doctor and that this was not the case of material contradiction and inasmuch as; the learned trial Judge overlooked the settled legal position that the evidence cannot be discarded on the mere ground that the shorter version was given in the FIR than what were stated in the oral testimony before the Court.
5. It cannot be disputed that the Court below had an occasion to notice the demeanour of the witnesses and also had an occasion to appreciate the evidence.
6. Having considered the rival contentions, it is required to be borne in mind that this revision is against the order of acquittal and it is settled legal position that even in appeal against the acquittal, the Court would be loathe to appreciate the evidence and render a distinct finding substituting the possible findings rendered on appreciation of evidence by the trial Court. The revisional jurisdiction is still more circumscribed in the sense that the revisional Court is required to look into the Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Sep 12 01:45:10 IST 2015 R/CR.RA/780/2004 JUDGMENT correctness or legality of the judgment and order, as also propriety of any finding, sentence or order and the regularity of the proceedings of the inferior Court. It is settled legal position that a mere wrong judgment will also not render a cause for interference in revision unless causation of grave injustice or miscarriage of justice is demonstrated.
7. In absence of plausible explanation of delay in lodgment of the FIR, it cannot be said that the trial Court committed an error of the nature requiring interference under Section 397 of the Code. It also cannot be disputed that the trial Court was within its jurisdiction to find the evidence of the witnesses or the complainant untrustworthy on the ground that the FIR was delayed and also on the ground that the complainant did not name the assailants at the first available opportunity, though they were known to him. Under these circumstances, it cannot be said that the inference drawn by the learned trial Court that the case was lodged probably because of the group rivalry, was incorrect or illegal. That apart, be it material contradiction or omission, it does matter when it goes to appreciation of evidence. Merely because, instead of using the expression omission, the learned trial Judge preferred to hold that the depositions of the witnesses did not tally with the material medical evidence insofar as injuries were concerned, it cannot be said that the evidence was not appreciated in its true perspective.
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R/CR.RA/780/2004 JUDGMENT
8. Further, when the complaint was with regard to bleeding injuries, the learned trial Judge was within his jurisdiction to render a finding that in absence of the presence of the blood at the scene of offence, the bleeding injuries as complained were not proved.
9. Under the aforesaid circumstances, this Court is of the opinion that no case is made out for interference under the revisional jurisdiction and therefore the revision application fails and is accordingly dismissed. Rule is discharged.
(G.R.UDHWANI, J.) sompura Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Sep 12 01:45:10 IST 2015