Versi Dharamshi Katua vs State Of Gujarat

Samir J. Dave, J

By preferring present application, applicant has requested to quash and set aside judgment and order dated 17.9.2019 passed by Ld. Judicial Magistrate, First Class, Mandavi (Kutch) in Criminal Case No. 228/2007 as well as judgment and order dated 21.3.2022 passed by Learned 6th Additional Session’s Judge, Bhuj-Kutch, in Criminal Appeal No. 37/2021.

Brief facts of the present case are as under:

2.1 That, on 24.5.2007 at about 18:30 am, the respondent no.2 to 4 -accused came at the near the Koday village Mandavi and used criminal force on the applicant-original complainant and gave the blow by stick and also used the abuse language to applicant and thereafter, run away from that place. When the witnesses approached the accused and reprimanded him, the accused intentionally abused, insulted and provoked them to cause break of public peace. The accused also threatened the witnesses of being done to death and thereby, the accused committed the offence u/s. 323, 504,114 of IPC and 135 of GP Act. The applicant therefore lodged FIR being II-C.R.No.3073/2007 on 28.5.2007 with Mandavi Police Station against the opponent no.2 to 4-accused for the above said offences. In pursuance to the above referred FIR, the investigating officer completed the investigation and filed charge sheet in the court of Ld. Judicial Magistrate, First Class, Mandavi(Kutch) The case was registered as Criminal Case No. 228/2007.

2.2 Thereafter, the charge came to be framed for the offences u/s. 323, 504 and 114 of IPC and 135 of GP Act against the accused. Thereafter, in all 8 prosecution witnesses came to be examined including the complainant and certain documentary evidence is also produced by the prosecution. After concluding the trial, the Ld. Judicial Magistrate, First Class, Mandavi(Kutch)) vide impugned order dated 17.9.2019, was pleased to held the respondent s no.2-4/accused not guilty for the offence punishable u/s. 323,504, 114 of IPC and 135. Being aggrieved by the said judgment of acquittal, the original complainant ie., present applicant preferred an appeal being Criminal Appeal No. 228 of 2007 but, learned 6th Additional District Judge, Kutch at Bhuj vide judgment and order dated 21.3.2022 was pleased to confirm the judgment and order of Ld Judicial Magistrate First Class Mandavi Kutch and rejected the appeal of the present applicant. Hence, applicant has approached this court.

Heard learned advocate for the applicant.

It was submitted by learned advocate for the applicant that the courts below have failed to appreciate the oral evidence of the complainant as well as prosecution witnesses, which go to the root of the case and clearly establish the commission of offence under Sections 323, 504,114 of IPC and 135 of G P Act by the accused. The prosecution witnesses have supported the case of the applicant that when they had approached the respondent no.2 to 4/accused, they were not only abused, insulted but were also gave blow to complainant. Therefore, the offences u/s. 323, 504, 114 of IPC and 135 of G P Act are clearly made out against the accused. However without appreciating the above material aspects, the Courts below have acquitted the respondents no.2 to 4-accused from the offences u/s. 323, 504, 114 of the Indian Penal Code and Section 135 of the G.P.Act. That, the findings arrived at by the courts below are based on mere conjectures and surmises only.

It was further submitted by learned advocate for the applicant that the appreciation as made by the courts below to the extent acquitting the respondent no.2 to 4/accused from the offence punishable under Sections 323, 504, 114 of the Indian Penal Code and Section 135 of the G.P.Act is neither reasonable nor true nor proper nor consistent with the facts, evidence and circumstances of the case as well as established principles of law.

Having heard learned advocate for the applicant as well as averments made in the present application and findings arrived at by the learned trial court, it appears that while concluding the trial and coming to the conclusion of acquitting the respondents no.2 to 4/accused persons for the charges levelled against them, the learned trial court has specifically mentioned in the order that contraction is found in the documentary evidence produced on record as well as depositions of the witnesses that from which weapon the injury was caused to the complainant. Further more, during the deposition the complainant has stated that after getting injury, he was at home and his wife was present there whereas while considering the complaint of this case, it appears that blood oozing from the head of the complainant and thus, he immediately reached to bus station of village Koday and he informed the same to his home and thereafter, his wife had come there. Thus, the learned trial court has found contradiction in the deposition of the complainant, complaint of the complainant and deposition of the wife of the complainant. The panch witnesses have not supported the case of the prosecution and thus, panchnama produced vide Ex. 44 and 50 are not proved. The prosecution has not examined the doctor who has given treatment to the complainant at Mandavi. Not only that the complaint was registered on the next date of incident by the complainant and no any satisfactory explanation for such delay has been given by the prosecution.

The learned trial court has also observed in the judgment of acquittal of the respondent no.2 to 4 that the chain of oral as well as documentary evidence is not relevant and while reading deposition of all the witnesses, prosecution has not proved essential ingredients of the offence punishable under Section 323, 114 of the Indian Penal Code alleged against the accused. It was further observed that in the complaint, the complainant has alleged that the accused has abused the complainant but in his deposition the complainant has not stated the said fact and complainant should have to mention the specific wordings by the accused in the complainant and deposition but such kind of allegations are not found therein.

Not only that the lower appellate court has also considered the observations made by the trial court while acquitting the accused/respondents no.2 to 4 and rejected the appeal filed by the present applicant/original complainant.

Thus, considering the observations made by learned trial court in its judgment and confirmed by the lower appellate court, it appears that both the courts below have not committed any error and as the concurrent findings are there, present application stands rejected at the admission stage without issuing notice to the otherside.