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CR.RA/104/2005 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 104 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD 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 ?
=========================================================
BABUBHAI
RAJABHAI CHAVDA - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MRS
KRISHNA G RAWAL for
Applicant(s) : 1,
MR LR PUJARI, APP for Respondent(s) : 1,
MR
PREMAL S RACHH for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 09/08/2011
ORAL JUDGMENT
This
revision has been filed by the original complainant under Section
397 read with Sec.401 of the Code of Criminal Procedure and under
Sec.482 of the Code of Criminal Procedure seeking to quash and set
aside judgment and order dated 8-7-2004 passed in Special Case No.5
of 2003 by the learned Special Judge, Jamnagar whereby the present
respondent Nos.2 and 3-original accused were acquitted from the
charges levelled against them.
The
facts in nutshell are that a complaint was filed by the
applicant-original complainant before Panchkosi Police Station for
the offences punishable under Secs.323, 504, 507(2) of IP Code and
Sec.135 of B.P.Act and Sec.3(1)(10) of Atrocity Act against the
present respondent Nos.2 and 3-original accused. It was alleged that
on 29-8-2002 at 4 p.m., when the applicant went to accused Nos.1 and
2 for tea and bidi, the accused asked to pay the old dues. Since he
told to pay after some days, the accused beat and abused the
applicant telling about his caste causing injuries to the
applicant. A complaint was therefore lodged before Jamnagar Police
Station. At the end of investigation, police filed charge sheet
against the accused. The case was numbered as Special Case No.5 of
2003 before the learned J.M.F.C., Jamangar and it was committed to
the Court of Special Judge, Jamnagar. At the end of trial, learned
Special Judge vide impugned judgment and order acquitted the
accused. Hence, the present revision by the applicant-original
complainant.
Heard
learned advocate, Mrs.Krishna G.Rawal for the applicant, learned
APP, Mr.L.R.Pujari for the respondent No.1-State and learned
advocate, Mr.Premal S.Rachh for the respondent No.2 to 3-original
accused. This Court has gone through the judgment and order of
acquittal passed by the learned
Special Judge.
It
is submitted by learned advocate, Mrs.Krishna Rawal for the
applicant-original complainant that applicant is a poor person
coming from backward class of the community and hence, he was under
fear, complaint could not be lodged in time. It is further
submitted that the learned Special Judge has not considered the
medical treatment taken by the complainant. It is also submitted
that the court below has wrongly interpreted the provisions of
Atrocity Act. Though the case against the accused has been proved
beyond reasonable doubt, learned Special Judge has committed error
in acquitting the accused persons.
It
is however submitted by learned advocate, Mr.Premal S.Rachh
that trial court has discussed the medical evidence in great
detail. It was also held by the learned Special Judge that
investigation has been carried out below the rank of Dy.S.P. which
is against the mandatory provisions and hence, the accused is
entitled to get order of acquittal. In view of the above, it is
stated that this revision be dismissed.
It
appears from the impugned judgment that prosecution has failed to
prove the charges against the accused beyond reasonable doubt. As
regards the explanation given by the learned advocate for the
applicant for late lodging of FIR is concerned, nothing has come out
from the evidence to show that because of fear or threat of accused
persons as they are alleged to be head strong persons, he could not
file the complaint in time. Apart from that, the learned Special
Judge has discussed the medical evidence in great detail and came to
the conclusion that case could not be proved by the prosecution
beyond reasonable doubt and hence, the accused were rightly
acquitted by the learned Special Court.
It
appears that investigation has been carried out under the
supervision of DY.S.P. and hence, from any stretch of imagination,
it could not be said that investigation was carried out by an
officer below the rank of Dy.S.P. Even if it is believed that
investigation is carried out by the competent authority who has
authority to carry out the investigation, then also, as discussed
above, the prosecution has failed to prove its case beyond
reasonable doubt and hence, this revision requires to be dismissed.
This
Court has gone through the judgment delivered by the Sessions Court.
No plausible explanation has been given by the complainant for
lodging the complaint late by five days. Before the doctor in the
hospital, it is stated by the complainant that unknown person caused
injuries. Prima facie it seems that complaint is an after thought as
complaint was lodged after five days. It is not the case of the
prosecution that the complainant was not knowing the accused persons
when the incident took place as they are residing in the same
Village and they are knowing each other since long. Therefore, the
complainant could have disclosed the name of accused person before
the doctor when he went for taking treatment. No doubt, it is not a
law that name of the accused should be disclosed before the doctor.
However, in this case, it is very well disclosed before the doctor
that assault by is caused by unknown persons. This is very
significance as complaint was lodged after five days. Learned
Sessions Judge has discussed the entire evidence in great detail
and thereafter came to the conclusion that prosecution failed to
prove the case beyond reasonable doubt. Even if two views are
possible, then also, if the view taken by the learned Sessions Judge
is probable, then also, in revision, this Court has limited power to
interfere with the findings of the Sessions Court.
In
this connection, reliance is made by this Court on a decision of the
Apex Court reported in (2010)2 Supreme Court Cases page 190 in
the case of Sheetala Prasad and Others Vs. Sri Kant and
another wherein it has been held para 12 as under:
“12.
The High Court was exercising the revisional jurisdiction at the
instance of a private complainant and, therefore, it is necessary to
notice the principles on which such revisional jurisdiction can be
exercised. Sub-section (3) of Section 401 of Code of Criminal
Procedure prohibits conversion of a finding of acquittal into one of
conviction. Without making the categories exhaustive, revisional
jurisdiction can be exercised by the High Court at the instance of
private complainant-
(1)
where the trial Court has wrongly shut out evidence which the
prosecution wished to produce,
(2)
where the admissible evidence is wrongly brushed aside as
inadmissible,
(3)
where the trial Court has no jurisdiction to try the case and has
still acquitted the accused,
(4)
where the material evidence has been overlooked either by the trial
Court or the appellate Court or the order is passed by considering
irrelevant evidence and
(5)
where the acquittal is based on the compounding of the offence which
is invalid under the law.”
In
view of the principles laid down as aforesaid, since the case of
the applicant- original complainant, is not falling in any of the
five categories carved out by the Hon’ble Apex Court in the above
reported judgment, this revision
requires to be dismissed.
Thus,
this revision is dismissed. Rule is discharged. Records and
proceedings be sent back forthwith.
(M.D.SHAH,J.)
radhan
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