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2020 Supreme(Guj) 259
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
V.P. PATEL, J.
State of Gujarat – Appellant
Versus
Chimanbhai Lakhabhai Padhiyar & others – Respondents
R/Criminal Appeal No. 1318 of 2009
Decided On : 08-01-2020
For the Appellant : Ms. Jirga Jhaveri APP
For the Respondent: Mr. Harshad K Patel
.
Point of Law
An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
Headnote:
Code of Criminal Procedure, 1973 – Section 378(1) – Complainant’s farm is situated besides the accused farm, which was cultivated by the accused persons. There are gorasamli trees on the boarder of these farms. At village in the sim, the complainant was cutting some branches of the Gorasamli trees, which were on the boarder of his farm. On seeing that the accused got angry and gave filthy abuse to the complainant and witnesses. The accused No. 3 inflicted stick blow on the shoulder and left hand of the complainant. The accused No. 1 inflicted stick blow on the elbow of right hand and right leg. In the said quarrel brother of the complainant tried to calm the situation but accused inflicted stick blow to him. Accused No. 3 also inflicted stick blow on the left hand and caused fracture of her left hand. Thereby all the accused persons, with the help of each other committed offence punishable under Sections 323, 325, 504 and 114 if IPC and under Section 135 of BP Act. Held – The arguments advanced by the learned APP and the learned advocate for the respondent, oral as well as documentary evidence as discussed above, facts and circumstances of the case, this Court is of the view that there is no perversity, illegality and impropriety in the impugned judgment. The prosecution has failed to prove the charges levelled against the accused. The trail Court has rightly acquitted the accused for the offences alleged – Appeal dismissed. (Para 16)
Facts of the Case:
Complainant’s farm is situated besides the accused farm, which was cultivated by the accused persons. There are gorasamli trees on the boarder of these farms. At village in the sim, the complainant was cutting some branches of the Gorasamli trees, which were on the boarder of his farm. On seeing that the accused got angry and gave filthy abuse to the complainant and witnesses. The accused No. 3 inflicted stick blow on the shoulder and left hand of the complainant. The accused No. 1 inflicted stick blow on the elbow of right hand and right leg. In the said quarrel brother of the complainant tried to calm the situation but accused inflicted stick blow to him. Accused No. 3 also inflicted stick blow on the left hand and caused fracture of her left hand.
Finding of the Court:
The arguments advanced by the learned APP and the learned advocate for the respondent, oral as well as documentary evidence as discussed above, facts and circumstances of the case, this Court is of the view that there is no perversity, illegality and impropriety in the impugned judgment. The prosecution has failed to prove the charges levelled against the accused.
Result: Appeal dismissed.
ORDER :
1. The appellant State of Gujarat has filed this appeal under Section 378(1) read with Section 378(3) of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the acquittal order dated 31.03.2009 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Anand (hereinafter referred as “the learned Trial Court”) in Sessions Case No. 63 of 2008.
2. Heard learned APP Ms. Jirga Jhaveri for the appellant State and learned Advocate Mr. Harshad Patel for the respondent-accused.
Order under Challenge:
3. Learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Anand passed an order dated 31.03.2009, acquitting the respondent – Original accused Nos. 1 to 3 under Section 235(1) of the Code for the offences punishable under Sections 325, 323, 504, 114 of the Indian Penal Code and under Sections 135 of the Bombay Police Act.
Arguments of the Prosecution:
4.1 Learned APP has argued that order of acquittal passed by the learned Trial Court is contrary to law and evidence on record. That the learned Trial Court ought to have to see that the prosecution has proved the case beyond reasonable doubt by placing cogent and reliable evidence. That the learned Trial Court has not appreciated oral as well as documentary evidence in proper perspective. That the prosecution has proved incident with date, place and time.
4.2 It is further argued that the prosecution has proved the injuries inflicted by the accused to the complainant as well as injured witness by producing medical evidence. That the FIR is duly proved in the deposition of the complainant. That the learned Trial Court has wrongly believed that the eye witness has not supported. That injured witness Hirabha has supported the case of the prosecution. And version of the injured witness supported by the medical evidence.
4.3 It is also argued that ingredients for the offence punishable under Sections 323, 325, 501 and 114 of IPC are established by giving cogent evidence. That the Judgment and order passed by the learned Trial Court is illegal, invalid and improper and the same deserves to be quashed and set aside. Learned APP has requested to allow this appeal and convict the offender for the offence charged against them.
Arguments of the defence:
5.1 Learned advocate Mr. Harshad Patel has argued that the judgment and order passed by the learned Trial Court is legal, valid in the eye of law as well as on facts. That the trial Court has rightly considered the oral as well as documentary evidence and acquitted the accused.
5.2 Learned advocate for the respondent further argued that the complainant has not stated as per the contents of the complaint therefore, complainant is rightly held not believable by the learned trial Court. That the learned trial Court has rightly considered the contradictions arise in the deposition of complainant Mr. Jagdishbhai. The eye witnesses have not supported the version of the prosecution. That the injured witnesses, Mr. Natubhai and Mr. Shambhubhai also have not supported the case of the prosecution. That the injured witness Hiraba has stated in her deposition that the Lakhabava has given blow at the left hand and the same has been contradicted in the cross examination of the defence and she has admitted that she has not dictated before police that the Lakhabhai has given blow on the left hand. Contradiction is proved. It is further argued that X-ray is not taken for the injury caused to the Hiraba. Learned advocate for the respondent has requested to dismiss the appeal.
Facts of the Case:
6.1 The Complainant Jagdishbhai has filed a complaint before the Anklav Police Station, District: Anand on 26.11.2017. The said complaint was registered vide Crime Register No. II- 3070 of 2007 for the offence punishable under Sections 323 and 504 of the IPC and under Sections 135 of Bombay Police Act.
6.2 As per complaint the complainant’s farm is situated besides the accused
