IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1053 of 1985 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 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 THAKARDA BHIKHAJI KANAJI -------------------------------------------------------------- Appearance: MR BD DESAI, APP for the appellant. MR PK JANI for Respondents No.1,2,4 to 11,13,14 ABATED for Respondent No. 3 NOTICE SERVED for Respondent No. 12 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE D.P.BUCH Date of decision: 15/03/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) The acquittal of the respondents of the offences punishable under sections 395, 397 & 398 of the Indian Penal Code recorded by the learned Assistant Sessions Judge, Mehsana vide judgment dated July 30, 1985 rendered in Sessions Case No. 16/85 is subject matter of challenge in the present appeal, which is filed under section 378 of the Code. 2. Complainant Mansangbhai Revabhai is a resident of village Bamosana, Taluka & District : Mehsana. At the relevant time, he was cultivating the field of one Chaudhary Visrangbhai Kanchibhai and had grown millet crop in the said field. Village Vadu is adjacent to village Bamosana and the boundaries of these two villages touch each other. According to the complainant, he used to go to his field to watch and protect the crops standing thereon. The incident in question is alleged to have taken place on November 2, 1984. At about 10.30 P.M. on that day, complainant alongwith Jesangbhai Revabhai, Babubhai Moghjibhai and other members of Gramraksha Dal went to his field for the purpose of ascertaining as to whether the crop was safe or not. At that point of time, Thakarda Bhikhaji Kanaji-respondent no.1, Lilaji Ramaji-respondent no.3, Jehaji Visaji-respondent no.2 and Varvaji Raykanji-respondent no.6, were found standing near boundary of the field. According to the complainant, they were armed with sickles, sticks, ropes etc.; whereas other persons were in the field and were harvesting millet. The complainant has claimed that respondents no. 1 to 4, 6 and 7 tried to assault him and others and respondent no.2 caused injury with pointed portion of dharia on his finger. It was also his case that others had thrown clubs, as a result of which he had sustained injury on his leg. The complainant had immediately rushed to his village and informed Mehsana Taluka Police Station about the incident on phone. On receipt of information, police personnel had come and thereafter the complaint of the complainant was recorded. The F.I.R. filed by the complainant was investigated by P.S.I. Mr. M.L.Vaghodia of Mehsana Taluka Police Station. At the conclusion of the investigation, the respondents were chargesheeted for the offences punishable under sections 395, 397 & 398 of the Indian Penal Code. As the offences are triable exclusively by the Court of Sessions, the case was committed to Sessions Court, Mehsana for trial, where it was registered as Sessions Case No.16/85. The learned Sessions Judge framed charge against the respondents for the offences punishable under sections 395, 397 & 398 of the Indian Penal Code. The charge was read over and explained to the respondents, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined; (1) Mansangbhai Revabhai as P.W.1 at Exh.25, (2) Jesangbhai Revabhai as P.W.2 at Exh.26, (3) Babubhai Shankerbhai Vastabhai as P.W.3 at Exh.27, (4) Shankerbhai Motibhai as P.W.4 at Exh.28, (5) Narsinhbhai Ramjibhai as P.W.5 at Exh.30, (6) Galabji Ramaji as P.W.6 at Exh.32, (7) Bhavanji Pratapji as P.W.7 at Exh.34, (8) Dwarkadas Ambaram as P.W.8 at Exh.35, (9) Jethaji Joraji as P.W.9 at Exh.37, (10) Bhagwatiprasad Induprasad as P.W.10 at Exh.38, (11) Kakusing Jawansing as P.W.11 at Exh.40, (12) Mr. M.L. Vaghodiya as P.w.12 at Exh.42, and (13) Dr. Bharatkumar Babaldas Patel as P.W. 30 at Exh.47, as well as produced documentary evidence, such as, panchnama of the place of incident, discovery panchnama, telephonic message recorded etc., to prove its case against the respondents. After recording of prosecution evidence was over, the learned Judge recorded statements of the respondents under section 313 of the Code. In their statements, the respondents denied the case of prosecution, but did not examine any witness in support of their defence. On appreciation of evidence, the learned Judge concluded that the charge levelled against the respondents was not proved by the prosecution. In that view of the matter, the learned Judge has acquitted the respondents by judgment dated July 30, 1985, giving rise to present appeal. 3. Mr. B.D.Desai, learned A.P.P. has taken us through the entire evidence on record. The learned counsel for the State submitted that the evidence of injured complainant that the respondents had committed dacoity and caused hurt to the complainant is corroborated by the evidence of witness Jesangbhai Revabhai as well as Babubhai Shankerbhai and, therefore, the respondents ought to have been convicted of the offences with which they were charged. The learned counsel for the State further pleaded that the prosecution evidence having not been appreciated in its proper perspective by the learned Judge, the judgment impugned in the appeal should be reversed and the appeal should be accepted. 4. Mr. P.K.Jani, learned counsel for the respondents contended that the evidence on record indicates that there was enmity between the complainant and other residents of village Bamosana with the respondents and as possibility of false implication is not ruled out, the appeal should be dismissed. The learned counsel pointed out that regarding injury sustained by the complainant, he is not corroborated by medical evidence and as there are material contradictions in the testimonies of witnesses examined by the prosecution, the order of acquittal passed by the learned Judge should be upheld. 5. We have heard the learned counsel for the parties and taken into consideration the evidence on record. We may state that so far as respondent no.3 is concerned, the appeal has abated against him in view of order of the Court dated March 1, 1990. The complainant in his evidence claimed that when he went to his field, he was accompanied by Jesangbhai Revabhai, Babubhai Moghjibhai and others, but we find that neither Babubhai Moghjibhai nor other witnesses have been examined by the prosecution. Apart from non-examination of relevant witnesses to lend corroboration to the testimony of the complainant, we find that after the incident the complainant had given necessary information on phone to Mehsana Taluka Police Station. The said information is treated as F.I.R. in the case and is produced at Exh.39 on the record of the case. A bare reading of Exh.39 makes it abundantly clear that the complainant was not able to give name of any of the respondents immediately after the occurrence of the so-called incident, nor did he state in the said information that respondent no.2 had caused injury to him by pointed portion of dharia. So far as injury to the complainant is concerned, we find that Dr. Bharatkumar has in terms stated that the said injury is not possible by pointed portion of dharia. Thus, the complainant stands contradicted by medical evidence on record. Babubhai Shankerbhai, who is examined as one of the eye witnesses, does not refer to any assault by any of the respondents either on the complainant or any one. Thus, even the complainant stands contradicted by the evidence of Babubhai. After discussion of the evidence adduced by the prosecution, the learned Judge has recorded conclusions in Para-17 of the impugned judgment, with which we completely agree. As we are in general agreement with the view expressed by the learned Judge, we do not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the Trial Court and in our view, expression of general agreement with the view taken by the learned Judge would be sufficient in the facts of the present case. This is so, in view of the decisions rendered by the Supreme Court in (1) Girija Nandini Devi & Ors. v. Bijendra Narain Chaudhary, A.I.R. 1967 S.C. 1124, and (2) State of Karnataka v. Hema Reddy and anothers, A.I.R. 1981 S.C. 1417. On overall appreciation of evidence, we are satisfied that there is no infirmity in the reasons assigned by the learned Judge for acquitting the respondents. The infirmities in the prosecution case pointed out by the learned Judge with which we agree, 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 set aside the order of acquittal, more particularly when the evidence has not inspired confidence of learned Judge who had opportunity to observe the demeanour of the witnesses. Suffice it to say that the learned Judge has given cogent and convincing reasons for acquitting the respondents and the learned Additional Public Prosecutor has failed to dislodge the reasons given by the learned Judge in order to convince us to take the view contrary to the one already taken by the learned Judge. The net result of the above discussion is that we do not find any substance in the appeal and the appeal is liable to be dismissed. For the foregoing reasons, the appeal fails and is dismissed. (J.M.Panchal,J.) ( D.P. Buch,J.) (patel)