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CR.A/746/2004 6/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 746 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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
RATILAL
BHANJIBHAI BHATTI & 3 - Opponent(s)
=========================================================
Appearance
:
MR.
R.C. KODEKAR, ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 20/04/2010
ORAL
JUDGMENT
(1) Heard
Shri R.C. Kodekar, learned Additional Public Prosecutor for the
appellant. Though served, none has appeared for the
accsued-respondents. Shri Bhargav Bhatt, learned counsel was
requested to appear as amicus
curiae on behalf of the respondents so as to assist
the Court. He willingly accepted the same and made submissions
extensively on behalf of the respondents hereinabove.
(2) The
appellant has preferred this appeal under Section 378 of the Code of
Criminal Procedure, challenging the order of acquittal dated
13.2.2004 passed by the Learned Additional Chief Judicial Magistrate,
Morbi in Criminal Case No.70 of 2002, whereby the accused respondents
hereinabove were acquitted of the charge of committing offence
punishable under Section 394 read with Section 114 of Indian Penal
Code.
(3) The
original complainant happened to be the driver of a Tanker, who
along with his brother, who was also working as a cleaner of the
Tanker bearing Tanker No. GJ-12-T-5507 while going towards Kandala on
the Tanker on 28.11.2001 near the railway crossing at about 8:30 to
9:00 was intercepted by accused, who drove
the vehicle and demanded papers of
the vehicle and slapped
driver and took Rs.5,000/- from the pocket of the driver-complainant
and the papers of the vehicle. The driver, thereafter, followed the
said vehicle of the accused with his Tanker, however, could not
overreached them and hence came back and reported the incident to his
employer, who in turn took him to the police station for registering
the offence, which came to be registered as CR No. 281 of 2001. The
investigation was conducted, the accused were arrested and police
report came to be filed indicating that the accused by their act of
intercepting the Tanker, taking the money of Rs.5,000/- and papers
committed offence punishable under Section 394 read with Section 114
of Indian Penal Code. The Trial Court after appreciating the
evidence on record, came to the conclusion that the prosecution
failed in establishing its case and hence acquitted the respondents
hereinabove of the charge of committing offence punishable under
Section 394 read with Section 114 of Indian Penal Code vide its order
dated 13.2.2004 in Criminal Case No.70 of 2002, which is assailed in
this appeal under Section 378 of the Code of Criminal Procedure.
(4) Shri
R.C. Kodekar, learned Additional Public Prosecutor submitted that
there is an ample evidence available on record, which would convinced
any Court of law with regard to happening of the incident between the
accused and the victim. He submitted that the TI parade and the
statement of the accused recorded under Section 313 of the Code of
Criminal Procedure would go to show that the happening of the
incident cannot be denied by anyone. However, Shri Kodekar could not
indicate as to in what manner, the reasoning given by the Court for
recording acquittal is perverse, nor could he point out any
discrepancy in the finding recorded by the Court and the material
available on record.
(5) Shri
Bhargav Bhatt, who assist the Court as amicus curiae
elaborately submitted that the glaring lapses in the case of the
prosecution has rightly persuaded the Trial Court for recording the
acquittal as could be seen from the reasoning of the Court in
Paragraph No.11,13 and 14 of the judgment impugned. Shri Bhargav
Bhatt took this Court extensively through the testimony of the
complainant, the complaint, testimony of the owner and the medical
officer who is said to have
been examined the complainant and indicated that the version of the
accused came in the explanation under Section 313 of the Code of
Criminal Procedure was found to be plausible and, therefore, the
Court may not interfere with the order of acquittal under Section 378
of the Code of Criminal Procedure.
(6) The
fact remains to be noted that the incident is said to have been
occurred on highway and as complainant himself has admitted that the
place of incident is near by the highway restaurant namely
Vashundhara Restaurant and the said restaurant was within the visible
distance from the occurring of the incident. The complainant, in the
complaint has narrated that he was given slaps, whereas while he was
examined by the Doctor, the history given was that of fist blow and
kicks blow.
(7) The
Court has also noticed that the complainant has stated that his
employer happened to be a brother of police personnel namely
Kanjibhai Rambhai, who is serving in the police. Though complainant
said that he did not know whether at that time he was posted at Morbi
or not. Shri Bhargav Bhatt invited this Court’s attention to the
medical certificate at Exh.36, wherein it is clearly mentioned that
the victim-complainant was brought to the hospital by Kanjibhai
Ramabhai, who happened to be brother of the employer and who is the
police personnel. It has come out in the cross-examination of the
Doctor, who examined the victim-complainant that there was no
external injury noticed on the body of the complainant. Shri Bhargav
Bhatt, learned counsel was correct in contending that the essential
ingredients embedded under
Section 378 and 390 were conspicuously found to be absent in the
entire proceedings, which would justify the reasoning adopted by the
Court for acquitting the accused-respondents hereinabove. The
cross-examination of the complainant indicate that when the incident
happened, the complainant did say that the traffic was going on and
despite that, he did not informed anyone nor anyone’s attention was
attracted to it. He admitted that he did not shouted for help when
the incident occurred, nor did he approached anyone sitting there,
which was visible distance from the place of so called occurrence.
Shri Bhatt also invited this Court’s attention to the
cross-examination of the
owner, PW No.9 in whose cross-examination, it has come out clearly
that the incident he had narrated with the police, which was recorded
as per his say by the police, at the relevant time, though in the
next statement he disputes that the complaint was taken as he
dictated it.
(8) In
view of the overall facts and circumstances of the case, this Court
is of the view that , even, if the second view is plausible, than the
same need not be resorted to
as the acquittal order is sustained unless and until, it is
established by the appellant that sustaining the same, would resulted
into miscarriage of justice. Looking to the scope of jurisdiction
under Section 378, this Court is of the view that the order of
acquittal needs no interference. The appeal fails and is required to
be dismissed and accordingly dismissed.
(S.R.BRAHMBHATT,J.)
Vahid
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