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CR.MA/14474/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14474 of 2010
In
CRIMINAL
APPEAL No. 1991 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
VIPUL
KANAIYALAL SHAH VANIYA & 4 - Respondent(s)
=========================================================
Appearance
:
MR
JK SHAH, APP for Applicant(s) : 1,
None for Respondent(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE
MR.JUSTICE P.P.BHATT
Date
: 23/02/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The
State of Gujarat through learned Public Prosecutor, High Court of
Gujarat has filed this application seeking Leave to Appeal against
the judgment and order of acquittal dated 28.7.2010 passed by learned
Additional Sessions Judge and Presiding Officer, Fast Track Court
No.2, Jamnagar in Sessions Case No.121 of 2009 whereby learned
Additional Sessions Judge and Presiding Officer, Fast Track Court
No.2 was pleased to acquit the respondents for the offence punishable
under Sections 399 and 402 of Indian Penal Code.
2. Learned
APP invited attention of the Court to the relevant discussion in the
judgment wherein in paragraph 29, learned Judge was pleased to
observe that ‘majority of the witnesses examined in this case are
police witnesses.’ Learned Judge further recorded that ‘witnesses
were in patrolling and, therefore, it is natural that they will be
police witnesses. Their evidence supports the evidence of the
complainant – Police Inspector’.
3. After
making the aforesaid observations in the judgment, learned Judge then
drew a conclusion that ‘these witnesses are ‘ interested
witnesses’ and, therefore, relied on their evidence
only, the accused cannot be punished.’
4. Learned
APP next invited our attention to paragraph 24 wherein learned Judge
has recorded that ‘in the Court itself, the complainant has
identified the muddamal and the accused’, but thereafter, he has not
given weightage to the said observation and has committed an error in
recording acquittal.
4.1 Learned
APP also invited attention of the Court to the observations made by
learned Additional Sessions Judge in paragraph 28 that the
prosecution has not recorded the statement of any other witness
except one Mansukhbhai.
4.2 Learned
APP submitted that this observation is uncalled for in light of the
fact recorded by learned Additional Sessions Judge in the very next
paragraph in the first line of paragraph 29 learned Judge has
recorded that ‘from the material produced before him and taking into
consideration the facts of this case, the case of the prosecution is
that on 17.8.2009 at 1.00 a.m. in the night, the incident took place
and the accused were apprehended by the police.’ In light of this,
observation made by learned Additional Sessions Judge in paragraph 28
is uncalled for and learned Judge has misdirected himself on account
of that observation.
5. This
Court is of the opinion that the matter requires consideration.
Hence, this application is allowed. Leave to Appeal is granted.
(RAVI
R.TRIPATHI,J)
(P.P.BHATT,J)
pathan
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