CR.RA/231/2000 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 231 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = SOMABHAI JIVABHAI KHIMSURIA Versus STATE OF GUJARAT & ANOTHER ========================================= = Appearance : MR PJ KANABAR for Applicant MR LB DABHI APP for Respondent No.1 MR MB PARIKH for Respondent No.2 ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 26/11/2008 CR.RA/231/2000 2/6 JUDGMENT ORAL JUDGMENT [1] This Criminal Revision Application is filed by the original complainant Somabhai Jivabhai Khimsuria against the judgment and order dated 27th April, 2000 delivered by the learned Special Judge, Amreli in Special Case No.36/1999 wherein the present respondent No.2 Chandubhai Bhikhabhai Gondalia being accused of said Special Case came to be acquitted by the trial Court for the offences punishable under Sections 352 and 504 of the Indian Penal Code as well as under section 3(1)(10) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. The brief fact of the present case is that on 19th February, 1999 at about 10.30 hours at Bagasara Town the incident occurred in the manner that the driver of the present applicant Danabhai Lakhabhai of Tractor bearing No.GJU 7442 had been to “Patel Wadi” for staking metal at about 9.00 a.m and, thereafter, complainant again visited “Patel Wadi” at 10.30 a.m and he found that one more Tractor of Chatur Natha Paghdal was being unloaded of sand and at that time accused was present there. The complainant Somabhai Jivabhai Khimsuria conveyed to the accused that the work of preparing road of Municipality was entrusted to him and why the accused was doing that work and had brought the tractor. Thereupon, accused Chandubhai Bhikhabhai excited and started giving abuses to the complainant and after taking a spade in his hand ran after the complainant to beat him and hence, the complainant escaped from CR.RA/231/2000 3/6 JUDGMENT that place. At that time, Naran Boricha, his tractor driver Danabhai Lakhabhai and one Balu Mana were present. The complaint was lodged by the complainant before Bagasara Police Station at about 12.15 p.m on the same day. After Investigation was over, a charge- sheet came to be filed in the Special Court. The accused pleaded not guilty and, therefore, the prosecution examined as many as eight witnesses and produced documentary evidence on record. After recording further statement of the accused under Section 313 of the Criminal Procedure Code, the learned trial Judge heard both the parties and came to the above conclusion of acquittal of the accused and hence, this Criminal Revision Application filed by the original complainant, applicant herein. [2] Learned advocate Mr.P. J. Kanabar for the applicant and learned APP Mr.L. B. Dabhi for the respondent No.1 – State were heard in detail. While learned advocate Mr.M. B. Parikh for the respondent No.2 is not present. [3] Learned advocate for the applicant submitted that the learned trial Judge has wrongly appreciated the evidence of both the eye witnesses i.e. P.W.5 – Danabhai Lakhabhai, Ex.19 and P.W.6 – Naranbhai Mavjibhai Boria, Ex.20. P.W.6 – Naranbhai Mavjibhai Boria, Ex.20 is a witness who is named in the FIR and that is evident from the copy of the FIR. He has submitted that the learned trial Judge did not believe this witness because what he deposed in not CR.RA/231/2000 4/6 JUDGMENT stated in FIR. Likewise, it is the submission that Danabhai Lakhabhai has not been believed only because of his natural conduct that he could not attempt to save his employer, but person acts and behaves in different manner in different circumstances and these are not the reasons, discarding this evidence. According to the learned advocate for the applicant, these are the manifest error on the part of the learned Judge to appreciate the evidence and hence, the Criminal Revision Application is required to be allowed. [4] This Court has taken into consideration the contentions raised and the record available with this Court to decide the Criminal Revision Application, it is found that the learned trial Judge has considered all the circumstances appearing surrounding the incident. It has been established through the evidence of Kiritbhai Dharamshibhai Patel, P.W.7, at Ex.21 that the work of road was entrusted to the complainant, but he could not deliver the goods and, therefore, the said work was given to the accused for which the complainant had also filed a Civil Suit, which is an admitted fact. The learned trial Judge appreciated the evidence on record in these circumstances of established enmity between the parties. When the evidence of complainant, witness Danabhai Lakhabhai Harijan and witness Naranbhai Mavjibhai Boria, is considered in juxta position, it is found that undoubtedly, it was an attempt on the part of the complainant to revenge on account of the dispute as to contract to supply the goods for the roads of Municipality and, therefore, the CR.RA/231/2000 5/6 JUDGMENT very root cause of the dispute that the complainant was the contractor and since the accused was also doing that work and since the accused was accosted by the complainant and the incident ensued, is a fact, could not at all be believed by the trial Court. Now, in this connection, apart from the natural conduct of witness Danabhai Lakhabhai Harijan, he is an interested witness and his evidence is to be considered along with the above said circumstances. Likewise, the evidence of Naranbhai Mavjibhai Boria, while considering along with the evidence of other two witnesses, the same story, which is improbable, is projected by him that the work to supply the goods was entrusted to the complainant. This goes to root of the prosecution case that in fact the work, thereafter, was entrusted to the accused and that was the reason for the complainant to file the present prosecution and, therefore, this witness also could not be believed by the trial Court. Now, the trial Court has observed that, this witness stated that when the accused ran after the complainant with spade, he and complainant ran away on motor cycle and that fact has not mentioned by the complainant in FIR, and that is found true that this fact has not mentioned by the complainant in his complaint. [5] In this view of the matter, this Court does not find any manifest error on the part of the learned trial Judge to appreciate the evidence, which would cause failure of justice. When a revisional jurisdiction is invoked by a private complaint against the order of CR.RA/231/2000 6/6 JUDGMENT acquittal, ought not to be exercised lightly and that it could be exercised only in an exceptional cases where interest of public justice requires interference for the correction of manifest illegality for prevention of a gross miscarriage of justice. [6] Only because on appreciation of the evidence of witnesses, some other view is possible, itself would not be ground for even Appellate Court to interfere with the order of acquittal, while this is revision application where the scope is to narrow. It appears that the State might not have filed the appeal against the acquittal, otherwise, would have tagged along with this Revision Application. [7] In view of the above, this Criminal Revision Application stands dismissed. Rule is discharged. [ J. R. VORA,J. ] (vijay)