CR.RA/615/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No.615 of 2006 For Approval and Signature: HONOURABLE MR. JUSTICE BANKIM N. MEHTA ========================================================= = 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? ========================================================= DR.TUSHAR A. BHAMBHANIYA - Petitioner Versus STATE OF GUJARAT & ORS. - Respondents ========================================================= = Appearance : MR RAXIT J DHOLAKIA for Petitioner. MR KC SHAH, APP for Respondent No.1. None for Respondent Nos.2-5. ========================================================= = CORAM : HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 01/05/2008 ORAL JUDGMENT The petitioner-original complainant has preferred this Revision Application under Section 397 CR.RA/615/2006 2/8 JUDGMENT read with Section 401 of the Code of Criminal Procedure, 1973 [“the Code” for short] and challenged the judgment and order of acquittal dated 04.06.2005 passed by the learned Sessions Judge, Navsari, in Criminal Appeal No.5 of 2003 acquitting the respondents-accused for the offences punishable under Sections 323 and 325 of the Indian Penal Code [“IPC” for short]. 2. It is the case of the prosecution that on 10.05.1998 at about 0.45 hours, the petitioner- complainant asked the respondents-accused as to why they are putting stones on the road in Vijaypark Society, Navsari. Therefore, keeping a grudge thereof, the respondents-accused gave abuses and threats to the petitioner-complainant and the witnesses and beat them with sticks and waist-belt and thereby committed offences punishable under Sections 323, 325, 504, 506(2) and 114 of the IPC and Section 135 of the Bombay Police Act. 2.1 On the basis of the complaint, an offence was registered with Navsari Police Station being C.R.No.II-50 of 1998 and the investigation was started. On completion of the investigation, the charge sheet was laid and the case was registered as Criminal Case No.4482 of 1998 in the Court of learned Chief Judicial Magistrate, Navsari. CR.RA/615/2006 3/8 JUDGMENT The trial Court framed the charge against the respondents-accused for the aforesaid offences. The respondents-accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced the evidence. On completion of recording of the evidence, incriminating circumstances appearing in the evidence against the respondents-accused were pointed out to them. The respondents-accused in their further statements recorded under Section 313 of the Code stated that they are falsely implicated in the offence. 2.2 After hearing the learned Additional Public Prosecutor and the learned advocate for the respondents- accused, the learned Chief Judicial Magistrate, Navsari, acquitted the respondents-accused for the offences punishable under Sections 504 and 506(2) of the IPC and Section 135 of the Bombay Police Act, but convicted them for the offences punishable under Sections 323 & 325 of the IPC and imposed the sentence. 2.3 Therefore, the respondents-accused preferred Criminal Appeal No.5 of 2003 in the Court of learned Sessions Judge, Navsari. The appellate Court by its judgment and order dated 04.06.2005 allowed the appeal and quashed and set aside judgment and order of CR.RA/615/2006 4/8 JUDGMENT conviction passed by the trial Court. 3. Being aggrieved by the said decision, the petitioner-original complainant has preferred this Revision Application. 4. I have heard Mr.Raxit J. Dholakia, learned advocate for the petitioner-complainant, at length and in great detail. I have also perused the paper-book supplied by him. 5. It appears from the impugned judgment that the petitioner-complainant and the respondents-accused had enmity and the evidence of interested witnesses only was adduced in the trial Court. The prosecution examined the complainant Dr.Tusharbhai Amrutbhai Bambhania as P.W.-2 at Exhibit 17. It appears from the evidence that when he, his wife Kusumben, daughter Radhika and son Hardik, were standing near their otla, the accused Prakashbhai inflicted blows on them with waist-belt and caused injuries to them. According to this witness, his mother Prabhaben tried to rescue them, but she also sustained injuries. According to the witness, the respondents- accused, Mahendrabhai Jogiya and Jagdishbhai Jogiya, had sticks in their hands and they also assaulted them and CR.RA/615/2006 5/8 JUDGMENT caused injuries. The witness has also deposed that they took treatment at the hospital and he lodged complaint, exhibit 18. The witness has also deposed that the doctor with whom the witnesses took treatment has recorded the case-history of injuries given by him. It appears from the impugned judgment that the complainant gave history of his injuries in the hospital “as assaulted by somebody”. Therefore, it appears that the complainant did not give the names of assailants at the first point of time while taking treatment in the hospital. 6. It also appears that when the witness took treatment at Civil Hospital, no external injuries were found on witness Prabhaben and Kusumben. Therefore, the prosecution case with regard to injuries inflicted to the witnesses by the respondents-accused becomes doubtful. It also appears that both these witnesses did not give history of injuries or pain at the Civil Hospital. Therefore, there is variance in the evidence of the complainant and the medical certificate with regard to the injuries. According to the complainant, his wife Kusumben had sustained injury on her hand; his mother had injury on right little finger and he had injury on left little finger, whereas witness Kusumben in her evidence deposed about fracture on the shoulder and the mother of CR.RA/615/2006 6/8 JUDGMENT the complainant has deposed about fracture on the her right rib. 7. According to the doctor's evidence, all the injuries were simple in nature. The witnesses examined by the prosecution are not independent witnesses and there are contradictions in their evidence. In view of contradictions in the evidence and in absence of evidence of independent witness, it would not be safe to rely upon the evidence of family members to connect the respondents-accused with the offence. It also appears that the petitioner-complainant is a Doctor and had discharged duties at Civil Hospital, Ahmedabad and Civil Hospital, Navsari. Therefore, it can be presumed that he must be aware about the procedure to be adopted in medico-legal cases. Other three witnesses, who are not related to the petitioner-complainant are also doctors. Therefore, it would not be safe to rely upon the evidence of such witnesses. It is also significant that after the alleged incident, the witnesses were taken to the Civil Hospital and were treated by Dr.Kiritkumar Bhagwanji (P.W.-3, Exhibit 19). According to the evidence of this witness, no fracture was found on Kusumben. Similarly, injured Prabhaben was also examined by the Doctor immediately after the incident, but she had no fracture. CR.RA/615/2006 7/8 JUDGMENT This clearly indicates that when the injured witnesses were examined by the Doctor at Civil Hospital, no injuries as alleged by the prosecution were found on them. Therefore, the evidence with regard to the injuries does not appear to be reliable and convincing. The prosecution also examined P.W.-5 Dr.Padmakar to prove the injuries. It appears from the evidence of the witness that the injured were treated as indoor patient, but the witness did not produce any documentary evidence to indicate that they were treated as indoor patients. Therefore, the medical evidence with regard to the treatment allegedly given to the injured does not inspire confidence. 8. It is settled proposition that an order of acquittal passed by a lower Court should be sparingly interfered with by the High Court in its revisional jurisdiction. The interference with the order passed by the lower Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the lower Court has overlooked material evidence. Therefore, ordinarily, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when CR.RA/615/2006 8/8 JUDGMENT the evidence has already been appreciated by the lower Court unless glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. Therefore, the High Court in its revisional power does not ordinarily interfere with judgment of acquittal passed by the lower Court unless there has been manifest error of law or procedure. In the case on hand, the petitioner has failed to point out that there is glaring illegality or that the lower appellate Court has overlooked the material evidence. It is also not indicated that there is manifest error of law or procedure. 9. In the result, the Revision Application fails and stands dismissed. [Bankim N. Mehta, J.] Rajendra