CR.A/1745/2005 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1745 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ===================================================== 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? ===================================================== STATE OF GUJARAT - Appellant(s) Versus KIRIT @ MUNNO @ KALI MAHADEVBHAI NANERA & 1 - Opponent(s) ===================================================== Appearance : MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR ANSHIN H DESAI for Opponent(s) : 1 - 2. ===================================================== CR.A/1745/2005 2/10 JUDGMENT CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Present appeal is preferred by the State under Section 378 of the Criminal Procedure Code against the judgment and order of acquittal dated 16.04.2005 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case Nos. 50 of 2002 and 61 of 2002, whereby the present respondents being accused of the Sessions Cases came to be acquitted by the learned trial Court for the offences punishable under Sections 394, 397, 114 and 511 of the Indian Penal Code. 2. Leave to appeal is granted. Appeal admitted. Mr.Anshin Desai, learned Advocate waives service of notice of admission on behalf of the respondents as he has already filed his appearance. He requested the CR.A/1745/2005 3/10 JUDGMENT Court to hear the matter finally as Record and Proceedings from the learned trial Court is available with us and he would provide extra copies of evidence recorded during trial and documents produced before the learned trial Court. The request is granted and the appeal is heard finally. 3. As per the prosecution case, complainant – Surendra Haridas Parekh was running a shop near Madh Street at Falia and when he was proceedings towards his shop on 28.01.2002 between 9.00 a.m. to 9.30 a.m. in the morning, he was having Rs.60,000/- to Rs.70,000/- in his wallet at that time the original accused tried to snatch wallet from him. When the original complainant ran to save the wallet both the accused started running after the complainant and gave fist blows and inspite of that the complainant did not part with the wallet and he entered into one Peppermint shop and as there was shouting both the accused ran away. It was further case of the prosecution that during the said scuffle the complainant was injured by knife on the face, elbow, right hand and left hand and said injuries were CR.A/1745/2005 4/10 JUDGMENT caused by the accused persons and therefore, it was alleged that the accused persons have committed the offence punishable under Sections 394, 397, 114 and 511 of the Indian Penal Code. 4. Investigation was carried out by one Demubha Sardarsing Chudasma, P.S.I.. He recorded the statements of the witnesses. He also drawn panchnama of place of offence and also drawn panchanama with respect to recovery of knife from the accused. He also obtained medical certificate with respect to the injuries caused to the complainant and after conclusion of investigation, he submitted charge- sheet against the accused persons in the Court of Chief Judicial Magistrate, Junagadh. As the case was sessions triable, the learned Chief Judicial Magistrate, Junagadh committed the case to the Sessions Court on 10.06.2002 against original accused no. 1 – Kirit @ Kali Malde which was re-numbered as Sessions Case No.50 of 2002. Similarly, the case was committed to the learned Sessions Court against original accused no.2 – Kapil @ Gautam Navinchandra Pandya on 03.07.2002 which was re-numbered as CR.A/1745/2005 5/10 JUDGMENT Sessions Case No.61 of 2002. As both the sessions case were arising out of one C.R., both were ordered to be heard together. Charge came to be framed against the accused persons vide Exh.2 for the offence punishable under Sections 394, 397, 114 and 511 of the Indian Penal Code. Each of the respondent pleaded not guilty and therefore, prosecution examined as many as 4(four) witness and produced on record voluminous documentary evidence such as original complaint, Panchanama with respect to recovery of knife from the accused, police yadi, medical certificate with respect to injury caused to the complainant. After evidence of the prosecution was over, incriminating circumstances appearing against the respondents was brought to the notice of the accused and their defence was of total denial in the statement recorded by the learned trial Court under Section 313 of the Cr.P.C. The learned trial Judge thereafter heard the prosecution as well as defence and came to the conclusion of acquitting the respondents of the charges levelled against them and hence, this appeal. CR.A/1745/2005 6/10 JUDGMENT 5. Mr.A.J.Desai, learned Additional Public Prosecutor and Mr.Anshin Desai, learned Advocate appearing on behalf of the respondents were heard in great detail in respect of this appeal. 6. We have gone through the Record and Proceedings of the trial court minutely and threadbare. We have considered the vital features of the matter and reasonable probability arising out of the circumstances of the case. We have taken into account the appreciation of the evidence undertaken by the trial court and reasons assigned for the acquittal. We have taken into consideration the contentions raised by the learned Advocates for the respective parties in this matter. We have scanned carefully the evidence recorded during trial after re-appreciating it to access the reasons assigned by the learned trial judge for the acquittal. 7. The prosecution examined original complainant Surendra Haridas Parekh at Exh.12. He narrated how the incident had taken place on 28.01.2002. He also stated on oath that at the time CR.A/1745/2005 7/10 JUDGMENT when the accused attacked him, he went into one shop and according to him as he tried to save the wallet from the accused he is not in a position to identify the accused who attacked him. He also could not identify the accused in the Court. 8. The prosecution examined one Manojbhai Ratilal at Exh.14 who happened to be panch witness of discovery panchnama and though he narrated how knifes were recovered from the Bajaj Scooter and which was packed in sealed condition, in the Court he admitted that police has obtained his signature on the prepared ready panchanama. The prosecution has further examined one witness – Mufzal Kurban Hussain at Exh.19 who was having his shop at Madh Street opposite Nagar Road. He deposed that the complainant rushed to his shop; he was having wallet in his hand and there was blood on the hand; he does not know who were coming behind said Surendrabhai. He also stated that he cannot identify the said persons. He also could not identify the accused persons in the Court. He was also cross-examined by the defence. CR.A/1745/2005 8/10 JUDGMENT 9. The prosecution lastly examined Investigating Officer – Dumabhai Sardarsingh Chudasma at Exh.20. He submitted that he recorded the statements of the accused and drawn panchnama of place of offence and obtained injury certificate and as there was sufficient material against the accused charge-sheet came to be filed by him. 10. Now considering the deposition of the original complainant, Mufzal Kurban Hussain at Exh.12 and Exh.19, it has come on record that both of them have stated that they cannot identify the accused. It is also stated by the complainant that he could not identify the accused as he was trying to save the wallet from the accused. Both of them have even not identified the accused in the Court room. Even discovery of two knifes from the accused is not established by the prosecution. Considering above and when the prosecution has failed to prove that respondents – original accused had infact attacked and accused injury to the complainant and thereby the learned trial Court has acquitted the respondents – original accused for the charges levelled against CR.A/1745/2005 9/10 JUDGMENT them, it cannot be said that the learned trial Court has committed any error and same is contrary to the evidence on record. 11. We have gone through the evidence on record and papers produced by the prosecution. The prosecution has failed to establish the case against the accused persons and failed to prove that the respondents – original accused have caused injury to the complainant and they have attacked the complainant. The conclusion arrived by the learned trial Court, therefore, cannot be said to be perverse, manifestly erroneous, palpably wrong or demonstrably unsustainable. 12. The scope of appeal against the acquittal is well defined by law. The orders against the acquittal cannot lightly be interfered unless it is found by the appellate court that the reasoning assigned by the trial court and conclusions arrived were so perverse that in any manner it cannot stand to reason. As discussed above, while assessing the reasons assigned by the learned trial Judge and CR.A/1745/2005 10/10 JUDGMENT evaluating the conclusions, it is found that the learned trial Judge has rightly taken the view to acquit the accused for the charges levelled against them as the prosecution could not establish the case against the respondent. The judgment and order impugned in this appeal, therefore, requires no interference. Hence, following order: “Appeal dismissed.” [J.R.Vora,J.] [M.R.Shah,J.] satish