State of Gujarat vs Chaudhari Vipulkumar Mansinhbhai and Another

Z.K. Saiyed, J.—The present appeal, filed u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of

acquittal dated 17th November, 1992 passed by the learned Sessions Judge, Mehsana, in Criminal Appeal No. 43 of 1992, whereby the learned

Sessions Judge has set aside the judgment and order of conviction and sentence dated 20th June, 1992 passed by the learned Chief Judicial

Magistrate Mehsana, in Criminal Case No. 1673 of 1990 and acquitted the Respondents-original accused from the charges leveled against them.

The short facts of the prosecution case is that on 13th January, 1990 at about 23.00 hours, the accused No. 1 by deception took the injured

witness Shankerbhai Bababhai Chaudhari from his residence and took him to Rajkamal Petrol Pump and thereafter both the accused persons

assaulted on the injured and gave blows of iron pipe and iron bar on the hand, leg and on the head of the injured witness-Shankerbhai Chaudhari

and thereby caused grievous injuries. Thereafter, both the accused persons threw the injured witness near the entrance of his society. It is the case

of the prosecution that the complainant-brother of the injured Shankerbhai Chaudhari had seen the accused No. 1 taking away his brother. The

complainant had worried about his brother as to why his brother has not returned to house though it was late in the night and came near the gate of

society where he show his brother, who was seriously injured. Thereafter, the complainant informed his neighbours and took the injured

Shankerbhai to the hospital of Dr. G.K. Patel, who had examined the injured and also gave him primary treatment. Thereafter, the injured person

was shifted to the Civil Hospital, Mehsana at about 3.40 hours and he was advised further treatment at the Civil Hospital, Ahmedabad, but the

injured-Shankerbhai Chaudhari had chosen to take treatment with Dr. G.K. Patel, Mehsana and therefore, he was admitted as indoor patient at

the hospital of Dr. G.K. Patel, Mehsana. It is further the case of the prosecution that on 14th January, 1990 at about 06.00 hours complaint came

to be filed with Mehsana City Police Station by the complainant-brother of the injured-Shankerbhai Bababhai Chaudhari.

Thereafter, necessary investigation was carried out, panchnama of seen of offence was prepared and statements of witnesses were recorded.

Thereafter, the accused persons were arrested and the muddamal iron pipe and iron bar was recovered from the accused persons. Blood stained

clothes of injured-Shankerbhai Chaudhari came to be seized. Thereafter, as the sufficient evidence was found against the accused persons, charge-

sheet was filed in the Court of learned Chief Judicial Magistrate, Mehsana for the offence punishable under Sections 325, 323 and 114 of the

Indian Penal Code and u/s 135 of the Bombay Police Act.

Thereafter, charge at Exhibit 37 came to be framed against the accused persons for the offences as mentioned above and read over to the

accused persons, to which they have pleaded not guilty and claimed to be tried.

To bring home the charge leveled against the accused persons, prosecution has examined witness and also relied upon documentary evidence in

support of its case.

Thereafter, trial was conducted before the learned Chief Judicial Magistrate, Mehsana and after hearing both the sides, the learned Chief Judicial

Magistrate, Mehsana by his judgment and order dated 20th June, 1992 was pleased to convict the accused persons for the offence punishable u/s

325 read with Section 114 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of five years, and also

imposed fine of Rs. 2,000/- each, and in default of payment of fine; sentenced them to undergo rigorous imprisonment for a further period of six

months. The accused persons were also convicted for the offence punishable u/s 323 read with Section 114 of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for a period of one year, and also imposed fine of Rs. 500/- each, and in default of payment of fine,

sentenced to undergo rigorous imprisonment for a further period of three months. However, both the sentences were ordered to run concurrently.

It was also ordered that out of total amount of fine, i.e. Rs. 5,000/-, received from the accused persons, Rs. 3,000/- was to be given to the

injured-Shankerbhai Bababhai Chaudhari as compensation.

Being aggrieved by and dissatisfied with the said order of conviction and sentence dated 20th June, 1992 passed by the learned Chief Judicial

Magistrate, Mehsana, the accused persons preferred appeal before the Sessions Court, Mehsana, being Criminal Appeal No. 43 of 1992. The

said appeal was heard by the learned Additional Sessions Judge, Mehsana and after hearing the parties, by his judgment and order dated 17th

November, 1992, set aside the judgment and order of conviction and sentence dated 20th June, 1992 passed by the learned Chief Judicial

Magistrate, Mehsana and acquitted the accused persons from the charges leveled against them.

Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 17th November, 1992 passed by the learned Additional

Sessions Judge, Mehsana, in Criminal Appeal No. 43 of 1992, the Appellant-State of Gujarat, has preferred the present appeal.

The original complainant has also preferred revision application being Criminal Revision Application No. 410 of 1992 against the judgment and

order of acquittal passed by the learned Additional Sessions Judge, Mehsana. It appears from the papers that on 08th February, 1994, this Court

(M.S. Parikh, J) has disposed of the said application observing ""as the Acquittal Appeal bearing No. 115 of 1993 is admitted, this would not

survive. Hence, disposed of accordingly.

Heard Mr. H.L. Jani, learned Additional Public Prosecutor for the Appellant-State of Gujarat, Party-in-Person original complainant and Mr.

Yatin Oza, learned senior counsel for the opponents.

The original complainant-Veljibhai Bababhai Chaudhari, Party-in-Person, is present during the course of hearing and prayed to permit him to

represent his case before this Court. Hence, though the revision application is disposed of by this Court, in the interest of justice, original

complainant is permitted to assist the learned Additional Public Prosecutor.

This Court in Criminal Miscellaneous Application No. 5522 of 2009 with Criminal Appeal No. 783 of 2010 on 10th May, 2010 has observed

that ""Under these circumstances, it can be concluded that if the State has not preferred appeal against the order of acquittal or if the leave is not

granted and the appeal of the State is not entertained, the victim may claim right of preferring the appeal in-absolute, but such right of preferring the

appeal may not be available if the appeal of the State is already admitted and the leave has been granted against the order of acquittal of the State.

In any case, even if it is read for the sake of consideration that the victim has absolute right to prefer appeal then also the judicial discretion would

demand that when the State has already preferred appeal against the order of acquittal and the leave has been granted by this Court and the appeal

has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain the another appeal of the victim by this

Court and the only observation deserves to be made is to enable the victim to assist the Public prosecutor as per the provision of Section 24(8)

Code of Criminal Procedure , at the time of final hearing of the appeal and/or by making the submission before the Court with the P.P. against the

order of acquittal.

Heard Mr. H.L. Jani, learned Additional Public Prosecutor for the Appellant-State of Gujarat. He has read the charge at Exhibit 37 and

contended that the Respondents-original accused were charged for the offences punishable under Sections 323 and 325 of the Indian Penal Code

and u/s 35 of the Bombay Police Act. He read the oral evidence of prosecution witness Dr. Gunvant Patel at Exhibit 20 and contended that

injuries received by the injured is serious in nature. The said witness has deposed in his oral evidence that if the injured would not be brought to the

hospital immediately, the injuries received by the injured may cause death of the said person. Thus, from the evidence of this witness, it is proved

beyond reasonable doubt that injured has received grievous injuries. He has further contended that ingredient of Section 325 of the Indian Penal

Code is proved beyond reasonable doubt through oral evidence of prosecution witness Dr. Gunvant Patel. Mr. Jani has also read the oral

evidence of this witness and contended that this witness has admitted in his oral evidence that injuries received by the injured can be possible by

the weapon recovered from the possession of the Respondents-original accused persons and the injuries are not simple in nature. Mr. Jani has also

read oral evidence of prosecution witness-Dr. Ishwarbhai Joitaram Patel at Exhibit 26, Civil Hospital, Mehsana and contended that the said

witness in his oral evidence has clearly stated that the injuries received by the injured-Shankerbhai Chaudhari is serious in nature and therefore, this

witness advised the injured for further treatment at Civil Hospital, Ahmedabad. He has also read the injury certificate issued by this witness at

Exhibit 27 and contended that the injury certificate suggests the seriousness of the injury. He has also contended that both these prosecution

witnesses are independent witnesses and their evidences are in corroboration of the oral evidence of the complainant at Exhibit 47. The

complainant in his oral evidence clearly deposed that he had seen the Respondent No. 1-original accused No. 1 to take his brother by deception.

Mr. Jani has also contended that the circumstantial evidence also corroborates the version of the complainant. He has further contended that the

learned Chief Judicial Magistrate has rightly convicted the Respondents-accused persons for the offences alleged against them and therefore, the

Sessions Court, in appeal, should not have interfered with the said findings of the trial Court. He has contended that witnesses have supported the

case of the prosecution and the learned Additional Sessions Judge has committed grave error in disbelieving and discarding the evidence of

witnesses. He, therefore, contended that looking to the evidence produced on record, circumstantial evidence and looking to the facts of the case,

judgment and order passed by the learned Additional Sessions Judge, Mehsana, quashing and setting aside the judgment and order of the learned

Chief Judicial Magistrate, Mehsana, is not proper.

As against this, Mr. Oza, learned senior counsel for the opponents, has supported the judgment and order of the learned Additional Sessions

Judge, Mehsana and contended that the learned Additional Session Judge has passed absolutely just and correct order. He has read the charge at

Exhibit 37 as well as documentary evidence and contended that the prosecution has failed to prove its case beyond reasonable doubt. He has read

the oral evidence of medical expert and contended that the injury prescribed by the medical expert is simple in nature. He has further contended

that as per the evidence of injured-Shankerbhai Chaudhari, he had not talked with his brother, complainant, about the incident, names of the

persons, place of incident and weapons used in the incident, till his statement was recorded on 14th January, 1990 up to 10.00 hours, then how it

is possible that the complainant mentioned the names of the present Respondents in the complaint registered at 06.00 hours. Thus, there is material

contradiction between the oral evidence of the complainant and injured witness. Even, there is contradiction between the complaint and the oral

evidence of the injured. Thus, the complaint filed by the complainant is concocted one. He has further contended that seen of offence is also not

proved beyond reasonable doubt. When seen of offence is not proved beyond reasonable doubt, it is fatal to the case of the prosecution. He has

also contended that even Respondents are not identified by the witnesses. Involvement and role of the Respondents are not proved beyond

reasonable doubt. Mr. Oza has contended that the learned Additional Sessions Judge has considered the oral as well as documentary evidence

and after appreciating the whole case, he has rightly set aside the judgment and order of conviction and sentence passed by the learned Chief

Judicial Magistrate, Mehsana. He, therefore, contended that present appeal is required to be dismissed.

I have heard both the parties and also perused the papers produced before me. I have also gone through the judgment and order passed by

the Courts below. I have perused the oral evidence of prosecution witness Dr. G.K. Patel at Exhibit 20. In his cross-examination, this witness has

admitted that the injury received by the injured-Shankerbhai Chaudhari on his left leg is simple in nature. He has also admitted in his cross-

examination that it is true that some injuries received by the injured are fatal. This witness has also admitted that when the injured-Shankerbhai

Chaudhari was under treatment of this witness, the injured has never disclosed facts of the incident. Even the injured has never disclosed the place

and time of offence. I have also perused oral evidence of prosecution witness Dr. Ishwarbhai J. Patel at Exhibit 26. This witness has admitted that

he has not received any x-ray report. I have also perused certificate given by this witness at Exhibit 29 wherein this witness has specifically

mentioned that injuries mentioned in the Certificate at Exhibit 27 are not likely to cause death in the normal course of nature. It appears from the

oral evidence of prosecution witnesses, the doctors, that the injured has never disclosed name of the assailant before them in the form of case

history also. I have also perused F.I.R. at Exhibit 48 wherein date of offence is mentioned as 13th January, 1990 between 22.00 hours and 23.00

hours. The complaint was lodged on 14th January, 1990 at 06.10 hours. It appears from the oral evidence of both the doctors, prosecution

witnesses, that both these witnesses have not informed the police about the incident. As per the evidence of prosecution witness Dr. G.K. Patel the

injured was produced before him at round about 01.30 hours and as per the evidence of prosecution witness Dr. I.J. Patel, injured was produced

before him at round about 03.50 hours. Even neither the complainant nor the injured has informed the police about the incident. I have also

perused oral evidence of Injured witness Shankerbhai Bababhai Chaudhari. In his oral evidence, this witness has contended that the incident had

taken place in the room situated on the right side of the petrol pump. This witness has also contended that he was beaten by the Respondents-

original accused in that room. This witness has also contended that at the time of incident three to four persons were present but they have not tried

to protect him and all were run away. This witness in his oral evidence states that the incident had happened between 21.45 hours and 22.00

hours. As per the complaint, the complainant saw that accused No. 1 by deception took his brother at 22.00 hours. Thus, there is a material

contradiction between the oral evidence of injured witness and the complaint. The prosecution has failed to explain this time difference. I have also

perused oral evidence of the complainant-Veljibhai Chaudhari. As per his evidence, the complaint was lodged as per information received by him

from his brother-injured witness. This complainant has also shown the seen of offence to the police and the police has made panchnama of seen of

offence on 14th January, 1990 between 07.30 hours and 08.00 hours. Even name of assailants were also given by the complainant. Now, it is

important to see the evidence of injured witness-Shankerbhai Chaudhari. As per his evidence, he has never stated a word about the incident to

anybody prior to his statement was recorded at 10.00 hours on 14th January, 1990. Thus, as per the evidence of this injured witness if he has

never disclosed about the time and place of the incident to anybody, how the complainant lodged the complaint prior to recording the statement of

this injured witness and how the complainant has shown the place of offence to the police. Even the injured witness-Shankerbhai has never talked

with police about the place of incident. Thus, there is material contradiction between the oral evidence of Shankerbhai Chaudhari-injured witness

and the complainant. The learned Additional Sessions Judge, Mehsana has rightly appreciated this aspect of the matter. Looking to the

contradiction in the oral evidence of injured and complainant, evidence of complainant cannot be said to be reliable, trustworthy and acceptable.

The conduct of the complainant creates some doubt. The prosecution has failed to prove the place of offence beyond reasonable doubt. There is

contradiction between the oral evidence of injured-Shankerbhai and complainant-Veljibhai. Prosecution has failed to prove the motive behind the

incident. Looking to the overall facts and circumstances of the case and evidence produced on record of the case, I am of the opinion that the

learned Additional Sessions Judge, Mehsana has rightly considered all the evidence and has passed absolutely just and legal order. I have not

found anything to say that prosecution has proved its case. Nothing is produced on record of this appeal to rebut the concrete findings of the

Sessions Court.

Thus, the Appellant could not bring home the charge against the Respondents-accused in the present Appeal. The prosecution has miserably

failed to prove the case against the Respondents-accused. Thus, from the evidence itself it is established that the prosecution has not proved its

case beyond reasonable doubt.

Mr. H.L. Jani, learned Additional Public Prosecutor for the Appellant-State of Gujarat, is not in a position to show any evidence to take a

contrary view in the matter or that the approach of the Sessions court is vitiated by some manifest illegality or that the decision is perverse or that

the trial court has ignored the material evidence on record.

In above view of the matter, I am of the considered opinion that the Sessions court was completely justified in setting aside the judgment of the

trial Court and acquitting the Respondents-accused of the charges leveled against them. I find that the findings recorded by the Sessions court are

absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.

I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned

Additional Sessions Judge, Mehsana and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.

In view of above, present appeal is dismissed. The judgment and order of acquittal dated 17th November, 1992 passed by the learned

Sessions Judge, Mehsana, in Criminal Appeal No. 43 of 1992, setting aside the judgment and order of conviction and sentence dated 20th June,

1992 passed by the learned Chief Judicial Magistrate Mehsana, in Criminal Case No. 1673 of 1990 holding the Respondents-accused guilty of the

charges leveled against them, is hereby confirmed. Bail bonds, if any, shall stand discharged. Record and Proceedings, if any, be sent back to the

trial Court concerned, forthwith.