PATEL BACHUBHAI RAJSHIBHAI v. RAVAL HARIVALLABH ishwarlal
1995-04-20
D.G.KARIA
body1995
DigiLaw.ai
D. G. KARIA, J. ( 1 ) THIS Criminal Appeal is directed against the judgment and order dated March 20, 1985 rendered in Criminal Case No. 214 of 1983, whereby the learned Magistrate, First Class, Harij, acquitted the accused persons, respondent nos. 1 and 2 herein, for the offences punishable under Secs. 323, 342, 504, 506 and 114 of the Indian Penal Code. ( 2 ) THE complainant, Patel Bachubhai Rajshibhai, lodged a private complaint against the respondent No. 1, who was the Police Sub-Inspector at Harij at the relevant time, and against the respondent No. 2, alleging that on April 16, 1983 the complainant had lodged a complaint about the misconduct of the accused No. 1 while discharging his duty as P. S. I. , Sami. When accused No. 1 came to know about this complaint, he along with accused No. 2 came to the residence of complainant at village Lolada at about 7-30 a. m. on April 18, 1983 and gave him filthy abuses and intentionally caused injuries and wrongfully confined him in the panchayat Office where P. W. 2 and P. W. 3 witnessed the incident. The accused persons having taken the complainant in the Panchayat Office closed the door of the office and accused No. 1 pointed his revolver at the chest of the complainant and asked why he gave a complaint against him in the office of the Collector. It * praying to set aside judgment and order passed by J. M. F. C. , Harij in Criminal Case No. 214 of 1983. was then alleged that the accused No. 2 caught hold of the complainant and the accused gave two blows with hockey on his head, as a result of which the complainant became unconscious. It is also alleged that the accused persons threatened the complainant and caused criminal intimidation. On these allegations, the complainant has lodged the complaint for the offences punishable under Secs. 323, 342, 504 and 506 (2) and 114 of the Indian Penal Code. ( 3 ) ON the aforesaid facts of the complaint, charge at Exh. 23 was framed to which accused persons pleaded not guilty.
On these allegations, the complainant has lodged the complaint for the offences punishable under Secs. 323, 342, 504 and 506 (2) and 114 of the Indian Penal Code. ( 3 ) ON the aforesaid facts of the complaint, charge at Exh. 23 was framed to which accused persons pleaded not guilty. In his further statement under Sec. 313 of the Code of Criminal Procedure, 1973, the accused No. 1 has stated that he had gone for investigation in a case against the complainant and therefore, a false complaint is filed against him and that he has committed no offence. ( 4 ) THE learned Magistrate, having recorded the evidence adduced on behalf of the complainant and on appreciation thereof, came to the conclusion that the offences charged against the accused have not been proved beyond reasonable doubt and ordered the accused persons to be acquitted, as aforesaid. It is against this judgment and order of acquittal that the present appeal is filed by the original complainant. ( 5 ) MR. M. J. Budhbhatti, learned Advocate appearing for the appellant, has taken me through the relevant evidence on record and the judgment under appeal. ( 6 ) THE complainant, P. W. 1, Bachubhai Rajshibhai, has been examined at Exh. 41. He has deposed that at 7-30 in the morning on April 18, 1983, the accused persons had come to his residence at village Lolada and had abused him and thereafter taking him to the Panchayat Office, he was wrongfully confined and was caused injury by a hockey on his head. He also deposed about the criminal intimidation given by the accused persons. In his cross-examination, the complainant has admitted that he was undergoing sentence on his being convicted in a murder case of killing one Arjanbhai Dhulabhai. He also admitted that the deceased Arjanbhai had lodged a complaint against him about the theft of his buffalow. He has also admitted that several Chapter cases have been lodged against him, but he did not know as to how many such cases were filed. He also tried to avoid the question in his crossexamination that as to how many times he was arrested in connection with those chapter cases. He has deposed that he did not know if he was released on bail on the day when he was caught by the accused persons on the day of incident.
He also tried to avoid the question in his crossexamination that as to how many times he was arrested in connection with those chapter cases. He has deposed that he did not know if he was released on bail on the day when he was caught by the accused persons on the day of incident. ( 7 ) P. W. 2, Ramabhai Rajshibhai, is the brother of the complainant, P. W. 1. He has also tried to support the version of his brother, P. W. 1. However, on going through his cross-examination, his evidence does not appear to be believable. ( 8 ) SIMILARLY, P. W. Ravabhai Virabhai, who is examined by the complainant at Exh. 46, has tried to support the version of the complainant. On careful consideration of the cross-examination of this witness also, his evidence does not appear to be worthy of any credence. ( 9 ) THNJUDGMENT of the Sessions Case No. 124 of 1983 is produced at Exh. 54 showing that the complainant came to be convicted for the offence under Sec. 302 of the Indian Penal Code and sentenced to suffer life imprisonment. ( 10 ) AS regards the medical evidence on record, which is dealt with by the learned magistrate in para 8 of his judgment, it is clear that the version of the complainant about beating by the accused with hockey is not proved. P. W. 4, Kantilal Kalidas patel, who is the Medical Practitioner, has deposed at Exh. 50 that he had examined the complainant at about 1-30 p. m. on April 18, 1983 and found some swelling on the left side of his face. He issued the Medical Certificate at Exh. 3. He has, in terms, admitted that there were no external injuries which could be noticed on the person of the complainant. He further admitted that the swelling that was found on the face of the complainant could be by reason of pain in the tooth or by falling even. Suffice it to state that the medical evidence on record does not support the version of the complainant about beating by the accused persons. ( 11 ) ). The learned Magistrate, having dealt with the other circumstances attendant to the occurrence, in para 9 of his judgment, came to the conclusion that the evidence of the complainant and his relatives are neither believable nor worthy of any credence.
( 11 ) ). The learned Magistrate, having dealt with the other circumstances attendant to the occurrence, in para 9 of his judgment, came to the conclusion that the evidence of the complainant and his relatives are neither believable nor worthy of any credence. He, therefore, gave benefit of doubt to the accused persons and acquitted them, as aforesaid. ( 12 ) ON careful consideration of the evidence and other material on record, I am of the opinion that no case is made out for interference in the order of acquittal recorded by the trial Court. It is settled position of law that the High Court, in exercise of its powers, while dealing with or disposing of the acquittal-appeal, should be slow to disturb the order of acquittal, unless the judgment of the trial Court is found to be perverse or there is manifest error or illegality in recording the order of acquittal. Mr. Budhbhatti has not been able to point out any such manifest illegality in the impugned judgment. In giving proper weightage and consideration to the matters, i. e. , (i) the view of the trial Judge as to the credibility of the witnesses, (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt, and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by the Judge who had the advantage of observing the demeanour of the witnesses, I find no substance in the present appeal. Even if two views are possible, the view in favour of the accused-the view taken by the trial Court on appreciation of the evidence-has got to be accepted. The allegation by the complainant is that the accused persons while discharging their duties as Police Officers, committed the offence and, yet, there is no sanction, as contemplated by Sec. 197 of the Code of Criminal Procedure, 1973. ( 13 ) ). In the above premises, there is no substance in the appeal. It fails and is dismissed. .