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2020 Supreme(Guj) 306
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Dipakgar Mohangar Dayalgar Gosai – Appellant
Versus
The State of Gujarat and Others – Respondents
Criminal Revision Application No. 82 of 2005
Decided On : 05-03-2020
Advocate Appeared:
For the Appellant : Mr. Viren G. Dave.
For the Respondents: Mr. S.K. Patel, Mr. Dhruvin Bhuptani, Mr. Yogesh S. Lakhani, Ms. Shruti Pathak.
Point of Law:
The legal position as to the powers of the High Court in revision in the matter of interference with the order of acquittal is no longer res-integra, as the law in this regard is very well settled.
Headnote:
Gujarat Police Act - Section 135 - Criminal Procedure Code, 1973 - Sections 397 and 401 - Indian Penal Code, 1860 - Sections 143, 147, 148, 149, 120-B, 447, 452, 323, 324, 427, 342, 506(2), 302 and 114 - Appeal present revision application filed emanates from judgment and order passed against order of acquittal passed in Sessions Case - Applicant has submitted that trial court has not considered evidence of eye-witness who has examined at in true perspective and on basis of presumption same is discarded by drawing inference that his mother deceased had died due to injury which was sustained when she fell down while going to answer nature's call -It is submitted that trial court has totally ignored evidence of eye-witness and has given undue weight age to defense version acquitting accused by giving benefit of doubt - It is also submitted by him that testimonies of injured eye-witness who has been examined at is also ignored as has received various injuries in incident as recorded by trial court and hence impugned judgment and order is required to be set aside -Held, Court has held that it is true that it is open to a High Court in revision to set aside an order of acquittal even at instance of private parties though State may not have thought fit to appeal but this jurisdiction should be exercised by High Court only in exceptional cases when there is some glaring defect in procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice - It is further declared that High Court in exercise of its provisional power can set aside an order of acquittal if it comes within ambit of exceptional cases but it cannot convert an order of acquittal into an order of conviction only course left to High Court in exceptional cases is to order retrial - looking to evidence which has emerged from record this Court is of considered opinion that same does not fall within parameter of an exceptional case which would demand a retrial - Hence present revision application fails same is dismissed shall be sent back to concerned trial court - Appeal dismissed (Para 14)
Facts of the Case:
Present applicant is the original complainant, who had filed complaint on 20.10.2003 at 13:30 hours against the opponent nos. 2 to 16 (original accused) for the offence punishable under Sections 143, 147, 148, 149, 120-B, 447, 452, 323, 324, 427, 342, 506(2), 302 and 114 of the Indian Penal Code, 1860 and Section 135 of the Gujarat Police Act.
Finding of the Court:
Court has held that it is true that it is open to a High Court in revision to set aside an order of acquittal even at instance of private parties though State may not have thought fit to appeal but this jurisdiction should be exercised by High Court only in exceptional cases when there is some glaring defect in procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice - It is further declared that High Court in exercise of its provisional power can set aside an order of acquittal if it comes within ambit of exceptional cases but it cannot convert an order of acquittal into an order of conviction only course left to High Court in exceptional cases is to order retrial - looking to evidence which has emerged from record this Court is of considered opinion that same does not fall within parameter of an exceptional case which would demand a retrial - Hence present revision application fails same is dismissed shall be sent back to concerned trial court.
Result: Appeal dismissed
JUDGMENT :
A.S. SUPEHIA, J.
1. The present revision application filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short “the Code”) emanates from the judgment and order passed by the Additional Sessions Judge (Fast Track Court), District Kachchh against the order of acquittal passed in Sessions Case No. 13 of 2004.
2. The present applicant is the original complainant, who had filed complaint on 20.10.2003 at 13:30 hours against the opponent nos. 2 to 16 (original accused) for the offence punishable under Sections 143, 147, 148, 149, 120-B, 447, 452, 323, 324, 427, 342, 506(2), 302 and 114 of the Indian Penal Code, 1860 and Section 135 of the Gujarat Police Act.
3. The investigation was handled by P.S.I. R.K. Zala. After completion of the investigation, he filed a report under Section 173 of the Code before the concerned court of Judicial Magistrate, First Class, who committed the case before the court of Sessions on 17.01.2004, which was registered at Sessions Court (Fast Track Court No. 4), Kachchh at Bhuj being Sessions Case No. 13 of 2004. After examining 20 witnesses and 43 documentary evidence, the trial court acquitted the accused for the aforesaid offence by giving benefit of doubt.
4. Learned advocate Mr. Viren G. Dave appearing for the applicant has submitted that the trial court has not considered the evidence of eye-witness Dipakgar M. Gosai (PW-5), who has examined at Exh.38 in true perspective and on the basis of presumption the same is discarded by drawing inference that his mother deceased Narmadaben Gosai had died due to injury which was sustained when she fell down while going to answer nature’s call. It is submitted that the trial court has also not considered the medical evidence and has discarded the same on the ground that the injuries could not have been received by the Pickaxe. It is submitted that the trial court has totally ignored the evidence of the eye-witness and has given undue weightage to the defence version acquitting the accused by giving benefit of doubt. It is also submitted by him that the testimonies of the injured eye-witness Tulshi J. Vanand (PW-16), who has been examined at Exh.63, is also ignored as he has received various injuries in the incident as recorded by the trial court and hence, the impugned judgment and order is required to be set aside.
5. Learned APP Ms. Shruti Pathak while adopting the arguments advanced by the learned advocate for the applicant has submitted that the trial court has wrongly given weightage to the lapse of period of lodging the FIR between 18:15 to 20:30. She has invited the attention of this Court to the testimony of the eye-witness Dipakgar M. Gosai (PW-5) in support of her submissions and submitted that except some minor contradictions, the testimony of the eye-witness remains intact and the same could not have been discarded by the trial court. She has further invited the attention of this Court to the testimony of Dr. R.R. Buchiya (PW-1), who has been examined at Exh.21 and submitted that in fact the doctor has opined that the fatal injuries could have been caused by a sharp edged weapon like Pickaxe. She has invited the attention to the P.M. Note at Exh.22 and submitted that there were other injuries, which were inflicted on the head of the deceased, whereas the testimony of the eye-witness stated that his mother deceased Narmadaben Gosai was inflicted the injury on the head by the handle of the spade.
6. Learned APP Ms. Pathak while placing reliance on the testimony of Tulshi J. Vanand (PW-16), who is examined at Exh.63, has submitted that he has supported the case of the eye-witness and he was also present at the time of incident. Thus, she has submitted that the trial court has totally ignored the testimony of the eye-witness Tulshi J. Vanand while giving benefit of doubt to the accused and hence, this Court may order retrial on the material irregularity committed by the trial court. In support of her submissions, she has pla
