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CR.MA/14701/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14701 of 2009
In
CRIMINAL
APPEAL No. 2625 of 2009
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
BHILIYO
@ BHILAL @ BILAL NURMAMAD SAMA - Respondent(s)
=========================================================
Appearance :
PUBLIC
PROSECUTOR for
Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 22/03/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present application for leave to prefer appeal is directed against
Judgement and Order dated 07.10.2009 passed by the learned Special
Judge, Kutch Bhuj in Special Case No.111/08, whereby the accused
has been acquitted for the offences under Sections 324, 323 and 504
of the Indian Penal Code read with Section 135 of the Bombay Police
Act and under Section 3(1)(10) of the the Schedule Caste &
Schedule Tribes (Prevention of Atrocities)Act, 1989 ( Atrocities
Act for short).
We
have considered the judgement and the reasons recorded by the
learned Special Judge. We have also considered the Record and
Proceedings. We have heard the learned APP for the State.
It
appears to us that so far as offences under the Atrocities Act are
concerned, there is no clear uncontroverted evidence and none of the
witnesses have supported the same. So far as the offences under IPC
are concerned, it is true that the victim has deposed, but three
eyewitnesses, as per the prosecution case have turned hostile. The
medical evidence is only supporting the case to the extent of
injury, but there is no medical history given to the Doctor stating
the name of the accused by the injured victim. The another aspect
is that the Doctor is a private Doctor and not a Government Doctor.
Under these circumstances, when three witnesses even as per the
prosecution has not supported the say of the complainant victim, a
doubt has created which is neither cleared or explained by the
medical history nor by any other reliable evidence. There is no FSL
report corroborating the link of injury with the accused. Under
these circumstances, if the learned Special Judge has found that the
prosecution has not been able to prove the case beyond the
reasonable doubt, the same cannot be said to be erroneous.
In
view of the above, leave does not deserve to be granted and
therefore, not granted.
Application
disposed of accordingly.
(JAYANT PATEL, J.)
(RAJESH H. SHUKLA, J.)
*bjoy
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