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1992 DIGILAW 371 (GUJ)

STATE OF GUJARAT v. LALITKUMAR MANHARLAL SHAH

1992-11-23

J.N.BHATT

body1992
J. N. BHATT, J. ( 1 ) BY this appeal under Section 378 of the Code of Criminal Procedure 1973 (Code for short) the appellant-State has questioned the validity and legality of the judgment and order of acquittal passed on 8. 6. 1984 by the learned Judicial Magistrate First Class Chhota Udepur in Criminal Case No. 165 of 1983 against all the respondents who are brothers. ( 2 ) A resume of the material facts giving rise to the present appeal may be shortly stated at the out set. ( 3 ) ACCORDING to the prosecution version the complainant Divisional Forest Officer Mr. J. K. Kulkarni alongwith his office staff had inspected the premises of Swaminarayan Saw Mill situated on the Jamla Road Chhota Udepur on the day of the incident that is 22. 11 with a view to ascertain as to whether the stolen wooden pieces cut from the forest were collected in the said saw mill. The respondents who are the original accused persons are the brothers and they physically assaulted the complainant as alleged by the prosecution. In that it is further alleged that the accused persons are the three sons of one Manharlal Shah (who is the owner of Laxmi Grinding Industries situated near Swaminarayan Saw Mills which was raided ). The prosecution also alleged that the accused persons abused and pelted stones at the complainant and his fellow staff and assaulted them. Upon these facts a complaint was lodged as per Ex. 33 on the basis of which an offence came to be registered against the accused persons with C. R. No. 174/82 for the alleged offfences punishable under Sections 332 337 352 504 and 186 read with Section 114 of the Indian Penal Code. Investigation was carried out and the accused persons came to be charge-sheeted in the court of the learned Judicial Magistrate First Class at Chhota Udepur for the aforesaid offences. ( 4 ) IN order to substantiate the charges against the accused persons the prosecution relied on the evidence of as many as 12 witnesses. Viva voce of the prosecution evidence consisted of the following persons: - p. W. No. Name of the P. W. Ex. ( 4 ) IN order to substantiate the charges against the accused persons the prosecution relied on the evidence of as many as 12 witnesses. Viva voce of the prosecution evidence consisted of the following persons: - p. W. No. Name of the P. W. Ex. No. - 1 Jivanlal Keshavlal 32 2 Dineshchandra B Chavda 36 3 Virdas Mohanlal 37 4 Vesta Malid 38 5 Jayantibhai Mangenbhai 40 6 Dhananjay Bhanushankar Shukla 41 7 Ahmed Gulam Shaikh 42 8 Naresh Nathalal 44 9 Vasta Malia 47 10 Punia Nura 49 11 Chhatrasinh Fatehsinh 50 12 Narayan Goba 52 ( 5 ) THE prosecution also relied on the FIR produced at Ex. 33 and the Panchnama to which reference will be made by this court as and when required at an appropriate stage. ( 6 ) IT would be pertinent to refer to the version of the defence at this juncture. ( 7 ) ACCORDING to the defence of the accused persons after effecting raid in the premises of Swaminarayan Saw Mills the complainant Divisional Forest Officer and the members of the raiding party approached them with a request to be Panch witnesses to which they refused to oblige the complainant and the raiding party. It was therefore contended that the complainant and rainding party got annoyed and assaulted them as a result of whcih one of the accused persons also got injured on he portion of chest. It was also the version of the defence that pelting of stones at the complainant and the members of the raiding party was not by the accused persons but it was done by the employees working in Laxmi Grinding Industries on account of the misbehaviour on the part of the complainant and his staff. ( 8 ) ON appreciation of the evidence on record the learned trial Magistrate reached to the conclusion that the prosecution has failed to establish the case beyond reasonable doubt and acquitted all the accused persons against all the charges levelled against them and partly accepted the version of the defence. Hence this acquittal appeal under Section 378 of the Code. ( 9 ) HAVING examined the faces and circumstances emerging from the evidence on record the view of the learned trial Magistrate elaborately enumeratred in paras 10 and 11 of the impugned acquittal judgment is possible and cannot be said to be perverse. Hence this acquittal appeal under Section 378 of the Code. ( 9 ) HAVING examined the faces and circumstances emerging from the evidence on record the view of the learned trial Magistrate elaborately enumeratred in paras 10 and 11 of the impugned acquittal judgment is possible and cannot be said to be perverse. It is true that ordinarily the sworn testimony of a responsible Government Officer should not be rejected on the ground of some contradictions in the evidence. In the present case it may be noted that the learned trial Magistrate has recorded that there was enmity between the complainant and the accused party. This aspect is not in controversy. Not only that the members of the raiding party are the subordinates of the complainant-Divisional Forest Officer. It is true that their evidence cannot be discarded merely on the ground that they are subordinates and interested in the prosecution version. In the present case it is rightly observed by the learned trial Magistrate that the contradictions in the evidence are material in nature and relating to the substratum of the prosecution version. Not only that despite the fact that independent witnesses were available they are not examined. It is admitted by the Investigating Officer in his evidence at Ex. 52 that one independent witness Arvind whose statement was recorded by him is not examined. The prosecution has not offered any convincing explanation as to why such an independent persons though available is not examined. ( 10 ) AGAIN it appears from the record that the prosecution has withheld the true facts from the scrutiny of the Court. It cannot be gainsaid that the very gist and gensis of the assault is not clearly stated by the prosecution version for the reasons not far to seek. Not only that the injury on the person of accused No. 2 (on the chest portion) is not explained but the delay in lodging the complaint is also not satisfactorily accounted for. ( 11 ) THUS while summing up the entire evidence the following facts and aspects which are not in controversy in the present appeal would undoubtedly create a substantial doubt on the varacity of the prosecution version: 1 Material contradictions in the evidence of eye-witnesses and that too on the main theme of the prosecution. ( 11 ) THUS while summing up the entire evidence the following facts and aspects which are not in controversy in the present appeal would undoubtedly create a substantial doubt on the varacity of the prosecution version: 1 Material contradictions in the evidence of eye-witnesses and that too on the main theme of the prosecution. 2 All the witnesses are subordinates working with the complainant-Divisional Forest Officer and in a way they are interested. 3 Non-examination of an independent eye-witness as admitted by the Investigating Officer i. e. Arvind. 4 Want of explanation for not recording the statements of available persons as there are many residential quarters and factories including an octroi office near the venue of the offence. 5 There being enmity and animosity between the complainant and the accused parties the view of the trial court in para 10 of the impugned acquittal judgment is possible and at any rate it cannot be said to be perverse 6 The fact that accused No. 2 Kaushikkumar Manharlal had first filed a complaint against the complainant party and also a private complaint in the court being Criminal Case No. 154/82. Again the version which was mentioned to the D. S. P. at the earliest point of time is not brought on record. ( 12 ) THE aforesaid admitted facts and circumstances would inevitably cast material shadow of doubt on the investigation and the prosecution version and in the circumstances emerging from the evidence on record the authenticity of acquittal recorded by the learned trial Magistrate and the view taken by him is not only not perverse but possible. In these circumstances the appellate court should not interfere with the acquittal as held by the Apex Court in the case of Awadhesh vs. State of M. P. reported in AIR 1988 SC 1158 . ( 13 ) SINCE this court is in agreement with the ultimate conclusions recorded by the learned trial Magistrate it would not be necessary to reiterate the entire evidence which is threadbare discussed by the learned Magistrate. This view is also supported by decision of the Supreme Court in the case of State of Karnataka vs. Hemareddy reported in AIR 1981 SC 1417 . This view is also supported by decision of the Supreme Court in the case of State of Karnataka vs. Hemareddy reported in AIR 1981 SC 1417 . ( 14 ) IN the circumstance narrated hereinbefore this court is convinced that the view taken by the learned trial Magistrate is possible and therefore this court is not inclined to interfere with the acquittal recorded by the learned trial Magistrate. Therefore this appeal is required to be dismissed. In the result the appeal is dismissed. Appeal Dismissed. .