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CR.MA/13789/2009 1/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13789 of 2009
In
CRIMINAL
APPEAL No. 2461 of 2009
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
RASULKHAN
HUSSAINKHAN PATHAN & 2 - Respondent(s)
=========================================================
Appearance
:
MR
LR PUJARI, LD. ADDL. PUBLIC PROSECUTOR
for
Applicant(s) : 1,
None for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 10/05/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present application for leave to prefer appeal is directed against
the judgment and order dated 11th September 2009 passed
by the learned Special Judge in Special Case No.28 of 2009, whereby
the accused have been acquitted for the offence under Section 323,
504 and 114 of the Indian Penal Code as well as for the offence
under Section 3(1)(10) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
We
have considered the judgment and reasons recorded by the learned
Sessions Judge. We have considered Record and Proceedings. We have
heard Mr.L.R. Pujari, learned Additional Public Prosecutor.
It
appears that as per the evidence on record, witness Shamji Kanji
Chiya in his deposition Exh.32 does not disclose about any word used
for insulting the Caste of the victim. Further, three important
witnesses Exh.26, 27 and 28, who were examined by the prosecution,
have turned hostile. There is also animosity between the victim and
the accused. Even Mr. Raval, learned Additional Public Prosecutor,
after making efforts has not been able to show any material, which
may support the case of the prosecution so as to prove the guilt of
the accused by unimpeachable evidence.
Under
these circumstances, if the learned Special Judge has found that
prosecution has not been able to prove the case beyond reasonable
doubt, the same cannot be said to be erroneous. Hence, leave does
not deserve to be granted and, therefore, not granted. The present
application is disposed of accordingly.
(Jayant
Patel, J)
(Z.
K. Saiyed, J)
Anup
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