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2015 DIGILAW 1255 (GUJ)

State of Gujarat v. Bhemji Madaji Thakor

2015-12-07

M.R.SHAH, Z.K.SAIYED

body2015
ORDER : M.R. Shah, J. Present criminal miscellaneous application has been preferred by the applicant - State of Gujarat for leave to appeal against the impugned judgment and order passed by the learned 4th Additional Sessions Judge, Banaskantha (hereinafter referred to as "trial Court") in Sessions Case No.104/2013 by which the learned trial Court has acquitted the accused for the offences punishable under sections 307 and 326 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") by giving the benefit of doubt. 2. To satisfy ourselves whether there is any substance in the appeal, we have heard Shri K.P. Raval, learned APP at length. He has placed before the Court the relevant evidence both oral as well as documentary for the perusal of the Court. We have perused and considered and re-appreciated the evidence on record both oral as well as documentary. 3. Considering the impugned judgment and order passed by the learned trial Court and on re-appreciating the entire evidence on record, we are satisfied that the learned trial Court has rightly acquitted the accused for the offence punishable under sections 307 and 326 of the IPC, by giving the benefit of doubt. The offence recorded by the learned trial Court are all on appreciation of evidence on record. 3.1. It is required to be noted that except the original complainant - Rekhaben Vadanji Thakor (PW-1), nobody has supported the case of the prosecution as most of the witnesses have turned hostile. From the deposition of the original complainant and the deposition of Bakaji Vadanji Thakor (PW-11) - son of the original complainant, who has been examined at Exh.36, there are number of contradictions. Even there was no date and time of the FIR. The place of the incident is also not proved and there are contradictions. Even there are contradictions with respect to the injuries sustained by the original complainant. It is also required to be noted that even at the first instance the complainant did not disclose the names of the accused. Even when subsequently she disclosed the names of the accused, she disclosed the name of two persons i.e. Bhemaji - the accused himself and one another viz. Madarji, however it is required to be noted that for whatever reason and despite the name of Madarji was disclosed, he has not been arraigned as an accused. Even when subsequently she disclosed the names of the accused, she disclosed the name of two persons i.e. Bhemaji - the accused himself and one another viz. Madarji, however it is required to be noted that for whatever reason and despite the name of Madarji was disclosed, he has not been arraigned as an accused. From the deposition of Bakaji Vadanji Thakor (PW-11), who has been examined at Exh.36, it appears that the complainant had a prior enmity with the accused and therefore, there are all possibilities of falsely implicating the accused. It has come on record that the original complainant was arraigned as an accused with accused in the present case in case of theft and even she was in jail for two to three months. The aforesaid is required to be appreciated along with the deposition of Dr. Adharhussain Wahidkhan who has been examined at Exh.12. It is required to be noted that according to the case of the prosecution and the original complainant, the accused caused the injury by sword. However, as per the deposition of the doctor, the injuries on the complainant was by hard and blunt substance. It is also required to be noted at this stage that even no blood was found on the weapon which was recovered. 3.2. At this stage it is required to be noted that even according to the deposition of Bakaji Vadanji Thakor (PW-11), her mother - original complainant was unconscious for 1&-1/2 days. As observed herein above in the FIR, no time and date has been mentioned. Therefore, who disclosed the names of the accused is also very much doubtful. 4. Considering the overall facts and circumstances of the case when the learned trial Court has acquitted the accused by giving benefit of doubt, it cannot be said that the learned trial Court has committed any error. At this stage it is required to be noted that this is an appeal against the judgment and order of acquittal and unless it is found that the finding recorded by the learned trial Court are so perverse and/or contrary to the evidence on record and by acquittal it has committed miscarriage of justice, then and then only the Appellate Court is required to exercise the powers. Considering the aforesaid facts and circumstances, we see no reason to interfere with the impugned judgment and order of acquittal passed by the learned trial Court. Hence, Leave to Appeal to prefer the appeal against the impugned judgment and order is refused. Consequently, present application is dismissed. Consequently, Criminal Appeal No.938/2015 is also dismissed. Ordered Accordingly.