State of Gujarat vs Induben Jayantilal Vaghela

S.R. Brahmbhatt, J.—Heard learned APP for the appellant. Though served none is present for the respondent/original accused.

The appellant State of Gujarat has preferred this appeal u/s 378 of Criminal Procedure Code challenging the order of acquittal dated 30/4/2004 passed by learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 1037 of 2002, acquitting the accused/ respondent herein of the charge of committing offence punishable u/s 324 and 427 of Indian Penal Code on account of prosecution''s inability to prove its case beyond doubt.

Facts in brief deserve to be set out leading to filing of this appeal.

The original complainant had to lodge complaint which came to be initially registered as NC Complaint as on 7/10/2002 her erstwhile tenant, the accused and she had an altercation and in the said altercation the accused started breaking glass jars lying there and hit the complainant with one of the glass jars causing injury on her left thigh, needing her to take medical treatment and hence accused committed offence punishable u/s 324 and 427 of I.P. Code. On receipt of medical report to this effect FIR was lodged on 16/10/2002 which is based upon the original NC which came to be registered on 7/10/2002 in respect of the incident occurred and Section 324 was required to be added on account of medical certificate handed over by the complainant to the police.

The charge was framed on 13/1/2003 on the allegation that accused thrown glass jar at the complainant and injured her on right thigh on 7/10/2002 at about 9.30 hours, thus committing offence punishable u/s 324 and 427 of I.P. Code. Accused pleaded not guilty to the charge and the trial commenced. Prosecution examined as many as five witnesses, including original complainant and after appreciating evidence on record came to be conclusion that the prosecution can not be said to have proved its case beyond doubt and thus acquitted the accused of the charge of committing offence u/s 324 and 427 of I.P. Code vide its judgment & order dated 30/4/2004 which is impugned in this appeal.

Heard learned APP Ms. Shah for the appellant. Ms. Shah while making submission in support of the case of the prosecution extensively read testimony of the witnesses, medical report and the order of acquittal impugned in this proceedings. She submitted that first information report is not belatedly filed as the initial report which was made to the concerned police station was in respect of the incident occurred. The use of means for injuring the complainant is proved on the part of the accused and therefore the prosecution case ought not to have been discarded as not established guilt of the accused beyond doubt. Learned APP however could not controvert the fact that no medical officer is examined, no evidence with regard to age of the injury, nature of the injury and likelihood of the weapon used for causing injury has come on record. She submitted that the Court may pass appropriate order.

This Court perused the record & proceedings, perused the papers and heard learned APP extensively. Trial court has recorded that there is mere say of the complainant with regard to usage of glass bottle for injuring the complainant, the discrepancies recorded are going to the root of the matter. The trial court has also appreciated the fact that PW No. 2 Kusumben Leuva is the person who had taken complainant to the doctor for treatment. There is improvement in her testimony in as much as she says that she never had stated before the investigating officer that she had gone to market for purchase of items and she happened to be there at the place of incident where accused was throwing glass jars. This improvement has come out in the cross examination. The testimony of the investigating officer also do not show that the accused used glass bottle or remnants of glass bottles or jars alleged to have used for causing injury. Panchnama of the place of incident is also silent with regard to this aspect. Moreover no doctor has been examined in support of the prosecution for proving that the complainant received injury by glass jar or bottle allegedly used by the accused. When all such factors have been considered and viewed properly by the court for recording acquittal, this Court u/s 378 of Cr.P.C. would not interfere with the same unless & until it is established by the appellant that sustaining of the acquittal order would result into miscarriage of justice. In this view of the matter this Court need not interfere with the order of acquittal as could be seen from the discussions herein above which does not suffer from any infirmity and hence the appeal fails and is accordingly dismissed. Bailable warrant shall stand cancelled.