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2011 DIGILAW 594 (GUJ)

Babubhai Rajabhai Chavd v. State of Gujarat

2011-08-09

M.B.SHAH

body2011
JUDGMENT : M.D. Shah, J. 1. This revision has been filed by the original complainant under Section 397 read with Section 401 of the Code of Criminal Procedure and under Section 482 of the Code of Criminal Procedure seeking to quash and set aside judgment and order dated 8-7-2004 passed in Special Case No. 5 of 2003 by the learned Special Judge, Jamnagar whereby the present Respondent Nos. 2 and 3-original accused were acquitted from the charges levelled against them. 2. The facts in nutshell are that a complaint was filed by the applicant-original complainant before Panchkosi Police Station for the offences punishable under Sections 323, 504, 507(2) of IP Code and Section 135 of B.P.Act and Section 3(1)(10) of Atrocity Act against the present Respondent Nos. 2 and 3-original accused. It was alleged that on 29-8-2002 at 4 p.m., when the applicant went to accused Nos. 1 and 2 for tea and bidi, the accused asked to pay the old dues. Since he told to pay after some days, the accused beat and abused the applicant telling about his caste causing injuries to the applicant. A complaint was therefore lodged before Jamnagar Police Station. At the end of investigation, police filed charge sheet against the accused. The case was numbered as Special Case No. 5 of 2003 before the learned J.M.F.C., Jamangar and it was committed to the Court of Special Judge, Jamnagar. At the end of trial, learned Special Judge vide impugned judgment and order acquitted the accused. Hence, the present revision by the applicant-original complainant. 3. Heard learned advocate, Mrs. Krishna G.Rawal for the applicant, learned APP, Mr. L.R.Pujari for the Respondent No. 1-State and learned advocate, Mr. Premal S.Rachh for the Respondent No. 2 to 3-original accused. This Court has gone through the judgment and order of acquittal passed by the learned Special Judge. 4. It is submitted by learned advocate, Mrs. Krishna Rawal for the applicant-original complainant that applicant is a poor person coming from backward class of the community and hence, he was under fear, complaint could not be lodged in time. It is further submitted that the learned Special Judge has not considered the medical treatment taken by the complainant. It is also submitted that the court below has wrongly interpreted the provisions of Atrocity Act. It is further submitted that the learned Special Judge has not considered the medical treatment taken by the complainant. It is also submitted that the court below has wrongly interpreted the provisions of Atrocity Act. Though the case against the accused has been proved beyond reasonable doubt, learned Special Judge has committed error in acquitting the accused persons. 5. It is however submitted by learned advocate, Mr. Premal S.Rachh that trial court has discussed the medical evidence in great detail. It was also held by the learned Special Judge that investigation has been carried out below the rank of Dy.S.P. which is against the mandatory provisions and hence, the accused is entitled to get order of acquittal. In view of the above, it is stated that this revision be dismissed. 6. It appears from the impugned judgment that prosecution has failed to prove the charges against the accused beyond reasonable doubt. As regards the explanation given by the learned advocate for the applicant for late lodging of FIR is concerned, nothing has come out from the evidence to show that because of fear or threat of accused persons as they are alleged to be head strong persons, he could not file the complaint in time. Apart from that, the learned Special Judge has discussed the medical evidence in great detail and came to the conclusion that case could not be proved by the prosecution beyond reasonable doubt and hence, the accused were rightly acquitted by the learned Special Court. 7. It appears that investigation has been carried out under the supervision of DY.S.P. and hence, from any stretch of imagination, it could not be said that investigation was carried out by an officer below the rank of Dy.S.P. Even if it is believed that investigation is carried out by the competent authority who has authority to carry out the investigation, then also, as discussed above, the prosecution has failed to prove its case beyond reasonable doubt and hence, this revision requires to be dismissed. 8. This Court has gone through the judgment delivered by the Sessions Court. No. plausible explanation has been given by the complainant for lodging the complaint late by five days. Before the doctor in the hospital, it is stated by the complainant that unknown person caused injuries. Prima facie it seems that complaint is an after thought as complaint was lodged after five days. No. plausible explanation has been given by the complainant for lodging the complaint late by five days. Before the doctor in the hospital, it is stated by the complainant that unknown person caused injuries. Prima facie it seems that complaint is an after thought as complaint was lodged after five days. It is not the case of the prosecution that the complainant was not knowing the accused persons when the incident took place as they are residing in the same Village and they are knowing each other since long. Therefore, the complainant could have disclosed the name of accused person before the doctor when he went for taking treatment. No. doubt, it is not a law that name of the accused should be disclosed before the doctor. However, in this case, it is very well disclosed before the doctor that assault by is caused by unknown persons. This is very significance as complaint was lodged after five days. Learned Sessions Judge has discussed the entire evidence in great detail and thereafter came to the conclusion that prosecution failed to prove the case beyond reasonable doubt. Even if two views are possible, then also, if the view taken by the learned Sessions Judge is probable, then also, in revision, this Court has limited power to interfere with the findings of the Sessions Court. 9. In this connection, reliance is made by this Court on a decision of the Apex Court reported in (2010) 2 SCC 190 in the case of Sheetala Prasad and Ors. v. Sri Kant and another wherein it has been held para 12 as under: 12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant- (1) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial Court has No. jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial Court or the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. 10. In view of the principles laid down as aforesaid, since the case of the applicant-original complainant, is not falling in any of the five categories carved out by the Hon'ble Apex Court in the above reported judgment, this revision requires to be dismissed. 11. Thus, this revision is dismissed. Rule is discharged. Records and proceedings be sent back forthwith.