IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1215 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- STATE OF GUJARAT Versus ZALA VAGHUBHA NANUBHA ZINZUWADA -------------------------------------------------------------- Appearance: Mr. R.C. Kodekar , APP, for appellant Respondent served. -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI Date of decision: 14/10/1999 ORAL JUDGEMENT 1. Appellant has filed this appeal under Section 378 of the Code of Criminal Procedure challenging the order of acquittal of the respondent for the offences punishable under Sections 323, 504, 506(2) of the Indian Penal Code and under Section 135 of the Bombay Police Act, recorded by the learned Judicial Magistrate, First Class, Bajana, on September 18, 1992, in Criminal Case No.89 of 1992. 2. The prosecution case be summarized as under: Complainant, Ratilal Kantilal, was residing at Zinzuwada along with his family. The complainant was by profession a carpenter and he was entrusted with the work of making wooden articles in the respondent's house. As per the say of the complainant, on November 15, 1991 at about 1 p.m. when he had gone to the house of the respondent, the respondent had asked him to prepare a dantali and when the complainant had told him that he did not know how to prepare dantali, the complainant was threatened by the respondent and stated that if he could not prepare dantali then he should give him Rs.500/-. It is alleged that a scuffle had taken place between the complainant and the respondent. As per the say of the complainant, two persons came to his rescue and he was saved from the clutches of the respondent. Thereafter, the complainant went to the police station and lodged complaint against the respondent, which was registered as C.R. No.I-99 of 1991, at Dhangadhra Police Station. Police Head Constable, Bhalabhai Lavjibhai, of Zinzuwada Police Station, was entrusted with the investigation. He prepared panchanama of place of incident and recorded statements of witnesses and on completion of investigation he filed chargesheet against the respondent in the the court of learned Judicial Magistrate, First Class, Bajana, which came to be numbered as Criminal Case No.89 of 1992. 3. Charge Exh.3 was framed against the respondent for the offences punishable under Sections 323, 504, 506(2) of the Indian Penal Code and under Section 135 of the Bombay Police Act. The charge was read over and explained to the respondent who pleaded not guilty and claimed to be tried. In order to prove charge against the respondent, the prosecution examined (1) complainant, Ratilal Kantilal, Exh.5, (2) Shailesh Ratilal, son of the complainant, Exh.7, (3) Dilipbhai Virjibhai, Exh.8, (4) Narendrabhai Ratilal, son of the complainant, Exh.10, (5) Rajubhai Motisinh, Exh.11, (6) Danbha Motisinh, Exh.12, (7) Police Constable Gaffarkhan Usmankhan, Exh.14, and (8) Police Head Constable Bhalabhai Lavjibhai, Exh.16. The prosecution also produced documentary evidence such as complaint, panchanama of seizure of knife, panchanama of place of incident, and notification issued under Section 135 of the Bombay Police Act to prove the case against the respondent. After the prosecution evidence was over, further statement was recorded of the respondent under Section 313 of the Code of Criminal Procedure. The respondent in his further statement stated that false case has been cooked up against him and no incident as narrated by the complainant had taken place. Learned Judicial Magistrate, First Class, Bajana, after appreciating oral as well as documentary evidence, and arguments advanced by the learned counsel for the parties, concluded that there were many contradictions and omissions in the evidence of the complainant as compared with the evidence of his two sons, namely, Shailesh Ratilal and Narendra Ratilal. It is also concluded by the learned Magistrate that there were many omissions in the complaint lodged at the police station and in the oral evidence of the complainant. The learned Magistrate also concluded that no independent witnesses were examined and the witnesses examined were related to each other whose the testimony was unreliable as there were many improvements found in their oral testimony. The learned Magistrate, on the basis of abovereferred to conclusions, acquitted the respondent of the charge framed against him, which is challenged by the appellant by filing this appeal. 4 Mr. R.C. Kodekar, learned Additional Public Prosecutor, has taken me through the evidence of the prosecution. The learned APP submitted that the learned Magistrate has erred in not relying upon the evidence of the complainant, which was corroborated by the evidence of his two sons, namely, Shailesh Ratilal, Exh.7, and Narendra Ratilal, Exh.10. It is submitted by the learned Additional Public Prosecutor that the prosecution has led sufficient evidence to prove the charges against the respondent and, therefore the appeal be allowed. 5. In my view, there is no substance in any of the contentions urged on behalf of the appellant, and the appeal cannot be entertained. On going through minutely the oral testimony of the prosecution witnesses, in my view, the learned Magistrate was justified in discarding the evidence of the prosecution witnesses on the ground that they were related to each other and, therefore, the testimony required a close scrutiny. If the evidence of the prosecution witnesses is examined minutely, it is found that there were many contradictions, omissions and improvements. The complainant himself did not state that the respondent was carrying a knife, whereas in the evidence of two sons of the complainant, it was found that the respondent was carrying a knife and had threatened the complainant by wielding the knife at him. The complainant did not state in the complaint who were the persons who came to his rescue. The sons of the complainant deposed that they had come to the rescue of their father, namely, complainant. Thus, there were many contradictions, omissions and improvements in the evidence of prosecution witnesses as compared to the complaint which was lodged at the Police Station. The knife, which was alleged to have been carried by the respondent at the time of the incident was said to have been seized under a panchanama but the said panchanama was not proved through evidence of panchas. Therefore, the prosecution case is full of cloud which has been created by the witnesses examined by the prosecution at the trial. Under the circumstances, it cannot be said that any error is committed by the learned Magistrate in acquitting the respondent of the offences with which he was charged. 6. This is an acquittal appeal in which the court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to interfere with the order of acquittal more particularly when the evidence has not inspired confidence of the learned Magistrate who had an advantage of observing demeanour of witness. On overall appreciation of evidence, I am satisfied that there is no infirmity in the reasons assigned by the learned Magistrate for acquitting the respondents. Suffice it to say that the learned Magistrate has given cogent and convincing reasons for acquitting the respondent and the learned Additional Public Prosecutor has failed to dislodge the reasons given by the learned Magistrate in order to convince us to take the view contrary to the one already taken by the learned Magistrate . Therefore, the acquittal appeal deserves to be rejected. 7. For the foregoing reasons, I do not find any substance in the appeal. The appeal, therefore, fails and is dismissed. Muddamal be disposed of in terms of the impugned judgment. **** (swamy)