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2016 DIGILAW 285 (GUJ)

State of Gujarat v. Daxesh Ratilal Patel

2016-02-05

M.R.SHAH, Z.K.SAIYED

body2016
JUDGMENT : M.R. Shah, J. 1. As all these Criminal Appeals arise out of impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Nadiad, in Sessions Case No. 20 of 2008 dated 24.11.2009, one by original accused No. 1 challenging the conviction, another by the State for enhancement of the sentence imposed by the learned trial Court, while convicting the original accused No. 1 and another Appeal by the State challenging the acquittal of the rest of the accuse i.e. original accuse Nos. 2 to 7, these Appeals are heard, decided and disposed of together by this common judgment and order. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Nadiad, (hereinafter referred to as "the trial Court") in Sessions Case No. 20 of 2008 dated 24.11.2009, by which the learned trial Judge has convicted the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code and has ordered the original accused No. 1 to undergo one year simple imprisonment with fine of Rs. 1000/- for the offence punishable under Section 452 of the Indian Penal Code, in default, to further undergo one month simple imprisonment and has also ordered the accused No. 1 to undergo six months simple imprisonment with fine of Rs. 1000/-, in default, to further undergo 15 days simple imprisonment for the offence punishable under Section 323 of the Indian Penal Code, the original accused No. 1 has preferred Criminal Appeal No. 2506 of 2009. 3. Feeling aggrieved and dissatisfied with the aforesaid impugned judgment and order passed by the learned trial Court, the State has preferred one another Criminal Appeal No. 138 of 2006 under Section377 of the Code of Criminal Procedure, for enhancement of sentence imposed by the learned Trial Court, while convicting the original accused No. 1 for the offences punishable under Sections 452 and323 of the Indian Penal Code. 4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court, the State has preferred one another Appeal being Criminal Appeal No. 143 of 2010, by which the learned trial Court has acquitted the original accused Nos. 4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court, the State has preferred one another Appeal being Criminal Appeal No. 143 of 2010, by which the learned trial Court has acquitted the original accused Nos. 2 to 4 and 6 to 8 for the offences punishable under Sections 504, 506(2), 325, 394, 395, 397, 451 read with Section 114 of the Indian Penal Code. 5. At this stage, it is required to be noted that though the original accused No. 1 was charged and though he has been tried for the offences punishable under Sections 323, 325 read with Section 114 of the Indian Penal Code, Section 504 read with Section 114, Section 506(2) read with Section 114, Sections 451, 452 read with Section 114, Sections 394, 395, 397 read with Section 114 of the Indian Penal Code, he has been convicted for the offence punishable under Sections 452 and 323 of the Indian Penal Code, the State has not preferred any appeal challenging his acquittal for which he has been acquitted. 6. The prosecution case in nutshell is that the complainant Jonathan Hiralal Levi was residing at Nadiad and practicing as professional advocate. It is further case of the prosecution that on 17.6.2004, the complainant left his house and went for attending the Court at about 11:00 Hrs. The table of the complainant is situated in front of the Court custody within the premises of the Court. It is further case of the prosecution that the complainant registered marriage of one Kelvina Vinubhai Christian resident of Krishnanagar Society before two days from the date of incident. It is further case of the prosecution that on 17.6.2004, at about 3:00 Hrs. at noon, while complainant was sitting on his table, one Sunilbhai Chauhan, practicing as an advocate in Nadiad District Court and his son as well as son of one Rameshbhai Talati and Viral Christian residents of Safalkunj Society as well as two sons of the owner of the office of complainant came in Sessions Court, on the table of the complainant and raised dispute with the complainant by saying that whey had you (complainant) gave information to the parents of the girl and thereby raised quarrel and beaten the complainant. It is also the case of the prosecution that the accused No. 7 Sunil Chauhan instigated the mob to beat the complainant by saying that "beat this person, I (accused No. 7) will finish this case." It is further case of the prosecution that the person who got married through complainant was also included in this mob and he had also beaten the complainant. Therefore, the complainant closed his office and returned to his home, but the accused persons chased him and came to the house of the complainant and beaten him. It is also the case of the prosecution that the person, who got married through the complainant had also inflicted pipe blow on the head of the complainant. It is also the case of the prosecution that during the quarrel, one 3310 Nokia Mobile of the complainant was stolen by the accused. Therefore, the complainant filed complaint being C.R. No. 35 of 2004 with Nadiad Town Police Station for the offences punishable under Sections 325, 394, 323,451, 452, 323, 504 and 506(2) of the Indian Penal Code. 6.1 That the FIR came to be investigated by the Investigating Officer Shri Ahmedali Abanmiya Pathan. He has recorded the statements of the concerned witnesses. He also collected the evidence to prove the case against the accused. That the original complainant made a complaint before Dy. S.P. that the Investigating Officer is not recovering his mobile. However, thereafter, the Investigating Officer has recovered one mobile however, the original complainant did not accept the same by submitting that it was not his mobile. That thereafter, after concluding, the Investigating Officer has filed the charge-sheet against all the accused in the Court of learned Chief Judicial Magistrate, Nadiad. As the case was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate committed the case to the Court of Sessions, Nadiad, which was sent to the Court of Learned Additional Sessions Judge, Fast Track Court No. 2, Nadiad, where the same is numbered as Sessions Case No. 20 of 2008. That the learned Sessions Judge framed the charge against all the accused for the offences punishable under Sections 323, 325 read with Section 114, Section 504 read with Section 114, Section 506(2) read with Section 114, Sections 451, 452 read with Section 114, Sections 394, 395, 397 read with Section 114of the Indian Penal Code. That the learned Sessions Judge framed the charge against all the accused for the offences punishable under Sections 323, 325 read with Section 114, Section 504 read with Section 114, Section 506(2) read with Section 114, Sections 451, 452 read with Section 114, Sections 394, 395, 397 read with Section 114of the Indian Penal Code. All the accused pleaded not guilty and therefore, all of them came to be tried by the learned trial Court for the aforesaid offences. 6.2 To prove the case against the accused, the prosecution has examined following 13 witnesses: Sr. No. Name of the witnesses Exhibit P.W.1 Jonathan Hiralal Levi, Complainant 59 P.W.2 Prafulbhai Nagarbhai Christian, Panch 78 P.W.3 Anilbhai Prafulbhai Parmar, Panch 80 P.W.4 Dr. Dinkar Dineshbhai, Medical Officer 82 P.W.5 Mahendrasinh Harisinh Sindhu, Panch 85 P.W.6 Gelan Evain Pravashi, Witness 88 P.W.7 Alinaben Simondbhai Parmar, Witness 89 P.W.8 Sadhnaben Rajnikant, Witness 90 P.W.9 Narendra Udaysinh Mekwan, Witness 91 P.W.10 Meenaben Robinbhai Mekwan, Witness 95 P.W.11 Ahmedbhai Abanmiya, Police Witness 96 P.W.12 Chandrakant Jadavbhai Chavda 99 P.W.13 Ahmedkhan Akbarkhan Pathan, I.O. 103 6.3 Through the aforesaid witnesses, the prosecution has also brought on record the following documentary evidence: Sr. No. Document Exhibit 1 Original cover 20 2 Card 25 3 Letters Written By complaint 26 & 27 4 Acknowledgment 28 5 Letter written to DSP 29 6 Application given to learned CJM, Nadiad 30 7 Original complaint 60 8 Application give to PI 61 9 Application submitted for mobile 62 10 Acknowledgment 63 11 Injury Certificates 83 & 84 12 Scene of offence Panchnama 86 13 Panchnama of clothes and iron rod 87 14 Panchnama of mobile sale 79 6.4 After closing purshish submitted by the prosecution, further statements of the accused persons came to be recorded under Section 313 of the Code of Criminal Procedure. All of them denied having committed any offence and as such they are falsely implicated in the case. 6.5 On conclusion of the trial, by the impugned judgment and order, the learned trial Court has acquitted all the accused for the offences punishable under Sections 504, 506(2), 325, 394, 395, 397,451 read with Section 114 of the Indian Penal Code. All of them denied having committed any offence and as such they are falsely implicated in the case. 6.5 On conclusion of the trial, by the impugned judgment and order, the learned trial Court has acquitted all the accused for the offences punishable under Sections 504, 506(2), 325, 394, 395, 397,451 read with Section 114 of the Indian Penal Code. However, the learned trial Court has convicted the original accused No. 1 - Daxesh Ratilal Patel for the offences punishable under Sections 452 and 323 of the Indian Penal Code and has imposed sentence for one year simple imprisonment with fine of Rs. 1000/-, in default, to further undergo one month simple imprisonment for the offence punishable under Section 452 of the Indian Penal Code and has imposed sentence for six months simple imprisonment and fine of Rs. 1000/-, in default, to further undergo fifteen days simple imprisonment for the offence punishable under Section 323 of the Indian Penal Code. Learned trial Judge has also passed order that both the sentences to run concurrently. 7. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court, the original accused No. 1 has preferred Criminal Appeal No. 2506 of 2009 challenging his conviction and sentence imposed by the learned trial Court for the offences punishable under Sections452 and 323 of the Indian Penal Code, 8. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court, the State has preferred Criminal Appeal No. 138 of 2010 for enhancement of sentence imposed by the learned trial Court, while convicting the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code. 9. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned trial Court, acquitting the original accused Nos. 2 to 4 & 6 to 8, the State has preferred Criminal Appeal No. 143 of 2010. 10. Shri K.P. Raval, learned APP has appeared on behalf of the State in all these appeals. Shri Vishal Mehta, learned advocate has appeared on behalf of the original accused No. 1 in Criminal Appeal No. 2506 of 2009. Shri C.B. Gupta, learned advocate has appeared on behalf of the original accused No. 1 and Shri L.R. Pathan, learned advocate has appeared on behalf of the original accused Nos. Shri Vishal Mehta, learned advocate has appeared on behalf of the original accused No. 1 in Criminal Appeal No. 2506 of 2009. Shri C.B. Gupta, learned advocate has appeared on behalf of the original accused No. 1 and Shri L.R. Pathan, learned advocate has appeared on behalf of the original accused Nos. 2 to 6 in Criminal Appeal No. 143 of 2010. CRIMINAL APPEAL Nos. 2506 of 2010 & 138 of 2010: 11. Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 has vehemently submitted that the learned trial Court has materially erred in convicting the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code. 11.1 It is vehemently submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that learned trial Court has materially erred in convicting the original accused No. 1 considering and relying upon the deposition of the complainant. It is further submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that the deposition of original complainant is full of contradictions and omissions and therefore, as such, the original complainant is not reliable and trustworthy and therefore, in absence of any other corroborative evidence, the learned trial Court has materially erred in convicting the original accused No. 1 solely relying upon the deposition of the original complainant. 11.2 It is further submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that in the present case, no independent eye-witness has been examined by the prosecution. It is submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that as such eye-witnesses P.Ws. 8, 9 and 10 have not supported the case of the prosecution. It is submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that therefore, when the deposition of the original complainant is full of material contradictions and omissions, the learned trial Judge has materially erred in convicting the original accused No. 1. 8, 9 and 10 have not supported the case of the prosecution. It is submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that therefore, when the deposition of the original complainant is full of material contradictions and omissions, the learned trial Judge has materially erred in convicting the original accused No. 1. 11.3 It is further submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that even from the deposition of the original complainant, no such incident has taken place at office premise of the original complainant which as such is admitted by the original complainant in his cross-examination. It is submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that therefore, the original complainant is not reliable and trustworthy and, therefore, it is not safe to rely upon the deposition of the complainant. 11.4 It is further submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that though according to the original complainant, the incident happened at three places (1) in the Court premise (2) at his office and (3) at his resident and despite the fact that the first incident alleged to have been taken place at the Court premise and though other witnesses were available, the prosecution has neither recorded the statement of other independent witness nor has examined any other independent witness. It is submitted that therefore, as such adverse interference is required to be drawn against the prosecution. 11.5 It is further submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that even during the incident alleged to have been happened at the resident of the original complainant, there is discrepancy in the place of incident and even with respect to the weapon alleged to have been used by the accused No. 1. It is submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that the recovery/discovery of the weapon/iron pipe alleged to have been used by the accused No. 1, has not been proved by the prosecution by leading cogent evidence, more particularly, when the Panchas have turned hostile and have not supported the case of the prosecution. It is further submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that the learned trial Judge has not properly appreciated even the credibility and/or character of the original complainant. It is submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that it has come on record that the proceedings were initiated against the original complainant - advocate for producing of false person before the Court and he was compelled to tender unconditional apology before the Court. It is further submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that even the original complainant had filed the suit against his father and others for the property and he submitted the application for injunction below Exhibit 5 and in that, Civil Court has found that the original complainant has tried to create an evidence by breaking open the lock and tried to get evidence that he is in possession. It is further submitted by Shri Mehta, learned advocate appearing on behalf of the original accused No. 1 that therefore, the learned trial Court has materially erred in convicting the original accused No. 1 relying upon the deposition of the complainant. Making the above submissions, it is requested to allow the appeal preferred by the original accused No. 1 and quash and set aside the impugned judgment and order of conviction by the learned trial Court and has requested to dismiss the Appeal preferred by the State for enhancement. 12. The Appeal preferred by the accused No. 1 is vehemently opposed by the learned APP Mr. K.P. Raval appearing on behalf of the State. 12.1 It is vehemently submitted by Shri Raval appearing on behalf of the State that in the present case, by leading cogent evidence, the prosecution has been successful in proving the case against the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code. It is submitted by Shri Raval, learned APP appearing on behalf of the State that therefore, as such no error has been committed by the learned trial Court in convicting the original accused No. 1. It is submitted by Shri Raval, learned APP appearing on behalf of the State that therefore, as such no error has been committed by the learned trial Court in convicting the original accused No. 1. 12.2 It is submitted by Shri Raval, learned APP appearing on behalf of the State that on appreciation of evidence, more particularly, deposition of the original complainant and having found that the prosecution has been successful in proving the case against the original accused No. 1, the learned trial Court has rightly convicted the original accused No. 1, which is not to be interfered by this Court in exercise of appellate jurisdiction. 12.3 In support of the appeal preferred by the State for enhancement of the sentence imposed by the learned trial Court, imposed while convicting the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code, it is vehemently submitted by Shri Raval, learned APP appearing on behalf of the State that in the facts and circumstances of the case and the manner in which the original accused No. 1 has committed the offence, the sentence imposed by the learned trial Court, cannot be said to be adequate and sufficient punishment and is in consonance with the gravity of the offences. It is submitted by Shri Raval, learned APP appearing on behalf of the State that the manner in which the original accused No. 1 committed offences and thereto in the Court premise and thereafter, at the resident of the original complainant/advocate, the learned trial Court ought to have imposed maximum punishment provided under Sections 452 and 323 of the Indian Penal Code. Making the above submissions, it is requested to dismiss the appeal preferred by the original accused No. 1 and allow the appeal preferred by the State being Criminal Appeal No. 138 of 2010. CRIMINAL APPEAL No. 143 of 2010: 13. Now, so far as the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused Nos. 2 to 4 & 6 to 8 for the offences punishable under Sections 504,506(2), 325, 394, 395, 397, 451 read with Section 114 of the Indian Penal Code is concerned, Shri Raval, learned APP appearing on behalf of the State has submitted that the findings recorded by the learned trial Court while acquitting the original accused Nos. 2 to 4 & 6 to 8 for the offences punishable under Sections 504,506(2), 325, 394, 395, 397, 451 read with Section 114 of the Indian Penal Code is concerned, Shri Raval, learned APP appearing on behalf of the State has submitted that the findings recorded by the learned trial Court while acquitting the original accused Nos. 2 to 4 and 6 to 8 are contrary to the evidence on record, more particularly, the deposition of the original complainant, who has examined as P.W. 1 at Exhibit 59. It is submitted that therefore, acquittal of the original accused Nos. 2 to 4 and 6 to 8 has resulted into miscarriage of justice. Therefore, it is requested to allow present appeal preferred by the State and reverse the impugned judgment and order of acquittal passed by the trial Court acquitting the original accused Nos. 2 to 4 and 6 to 8 consequently to punish the accused Nos. 2 to 4 and 6 to 8 for the offences for which they were tried. 13.1 Criminal Appeal No. 143 of 2010 preferred by the State, challenging the impugned judgment and order of acquittal, acquitting the original accused Nos. 2 to 4 and 6 to 8 is vehemently opposed by Shri C.B. Gupta and Shri L.R. Pathan, learned advocates appearing on behalf of the respective accused. 13.2 It is vehemently submitted by the learned advocates appearing on behalf of the original accused Nos. 2 to 4 and 6 to 8 that the present appeal is against the judgment and order of acquittal and therefore, until and unless, it is found that the findings recorded by the learned trial Court are perverse and contrary to the evidence on record and acquittal has resulted into miscarriage of justice, the Appellant Court is not justified in interfering the order of acquittal. It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that in the present case, findings recorded by the learned trial Court on appreciation of evidence, which are not required to be interfered by this Court in exercise of appellate jurisdiction. It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that in the present case, findings recorded by the learned trial Court on appreciation of evidence, which are not required to be interfered by this Court in exercise of appellate jurisdiction. 13.3 It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that in the present case, learned trial Court has rightly observed and held that the prosecution has failed to prove the case beyond reasonable doubt against the accused Nos. 2 to 4 and 6 to 8. 13.4 It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that in the present case, the original complainant is not reliable and trustworthy and his deposition is full of material contradictions and omissions, which is borne out from the examination-in-chief and cross-examination of the original complainant. It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that therefore, learned trial Court has rightly disbelieved/discarded the deposition of the original complainant, while acquitting the original accused Nos. 2 to 4 and 6 to 8. It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that in the present case, except the original complainant, who is not trustworthy and reliable, other eye-witnesses, who are examined as P.W. 6 Gelan Ivan Jayanandbhai and P.W. 7 Alinaben Saimond Parmar examined at Exhibit 88 and 89 respectively, have not supported the case of the prosecution. It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that no other eyewitness, though available, have not examined by the prosecution. It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that first incident alleged to have been taken place was in the Court premise, near custody room, where there would be police personnel, other advocates, litigants etc. However, the investigating agency has not recorded the statement of any eye-witness and as such the prosecution has not examined any independent witness though available. However, the investigating agency has not recorded the statement of any eye-witness and as such the prosecution has not examined any independent witness though available. It is submitted by the learned advocates appearing on behalf of the original accused No. 2 to 4 and 6 to 8 that no error has been committed by the learned trial Court in acquitting the original accused No. 2 to 4 and 6 to 8. Making the above submissions, it is requested to dismiss the appeal preferred by the State challenging the impugned judgment and order of acquittal. 14. Heard learned advocates appearing on behalf of the respective parties at length. 15. We have re-appreciated the entire evidence on record. We have also gone through and considered the findings recorded by the learned trial Court, recorded while convicting the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code and while acquitting the original accused No. 1 for the other offences and even acquitting the original accused Nos. 2 to 4 and 6 to 8. 16. At the outset, it is required to be noted that in the present case, the case mainly rests on the deposition of the original complainant, who has been examined as P.W. 1 at Exhibit 59. Other witnesses, who are examined as P.Ws. 2 to 10 have not supported the case of the prosecution. According to the prosecution and even the original complainant, the incident had occurred at three places, first incident alleged to have been taken place at Court premise, near custody room; second incident alleged to have been taken place at the office of the original complainant and third incident alleged to have been taken place in his house. Now, so far as first incident is concerned, it is required to be noted that same is alleged to have been taken place near the custody room in the Court premise. As admitted by the original complainant, there were police constables, other advocates and other persons/litigants. However, the investigating agency have not recorded the statement of any independent witness. The prosecution has not examined any other independent witness though available. The deposition of the original complainant P.W. 1 examined at Exhibit 59 is also not considered. As admitted by the original complainant, there were police constables, other advocates and other persons/litigants. However, the investigating agency have not recorded the statement of any independent witness. The prosecution has not examined any other independent witness though available. The deposition of the original complainant P.W. 1 examined at Exhibit 59 is also not considered. Therefore, the question, which is posed for consideration in the present case in the facts and circumstances of the case is as to whether the leaned trial Court is justified in convicting the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code. From the deposition of the original complainant, it is required to consider as to whether the original complainant is reliable and trustworthy and whether it will be safe to convict the original accused No. 1 and other accused persons relying upon the deposition of the original complainant? 17. Having heard the learned advocates appearing on behalf of the respective parties and on appreciation of entire evidence on record, more particularly, the deposition of the original complainant, we are of the firm view of the opinion that there are material contradictions and omissions and therefore, the original complainant is not trustworthy and/or reliable and thereby, it is not safe to convict the original accused No. 1 and/or any other accused relying upon the deposition of the original complainant. 18. On considering the deposition of the original complainant, he has specifically admitted that nobody has snatched his mobile. He has categorically admitted that if somebody has snatched his mobile, it can be known. He has specifically admitted that when the incident had happened in the Court, other persons gathered including lawyers and that nobody had beaten him there. He has categorically admitted that it has not so happened that after the incident happened in the Court premise, he took the accused to his office. He has further admitted that when he gave complaint, he did not know who took his mobile. He has specifically admitted in his deposition if at any point of time, he has stated that to decide right or wrong and/or to prove right or wrong, he went to the office then, it is not correct. He has further admitted that it is not true that the persons, who met him in the Court compound were taken to the office for discussion. He has further admitted that it is not true that the persons, who met him in the Court compound were taken to the office for discussion. He has specifically admitted that if it is stated by him that all of them went to his office then it is not true. He has further admitted that it has not so happened that the accused came to his office and that they had not talked in the office and thereafter, they returned and thereafter, he closed the office. He has admitted that in his office, no untoward incident has taken place. He has further admitted that he went to the hospital on scooter which was driven by him and that he was able to go to the hospital on scooter. 19. Now, on considering the entire deposition of the original complainant, there are material omissions, which are as under: "OMISSIONS Page No. 375:- "It is true that I have not dictated such a fact in my complaint that thereafter, all these persons and I came to my office." "It is true that I have not dictated such a fact in my complaint that thereafter, I went to my office and all the boys came to the office and the son of Patel, two fair boys and other Christi assaulted me with fist blows." Page No. 377:- "It is true that I have not dictated in my complaint that therefore I escaped and went towards my house." Page No. 397:- "It is true that I have stated in my deposition of Exh-59 that, two fair boys, Viral Christi and Daxesh Patel, all of them assaulted me at my house. Thereafter, the accused persons opened my gate and came inside and Daxesh Patel inflicted a pipe blow on my head and as I started bleeding, I collapsed." "It is true that I have not dictated any such fact in my complaint." 20. Even in the deposition of the original complainant, there are material contradictions, which are as under: "CONTRADICTIONS Page No. 371:- "It is true that I have dictated in my complaint of Exh-60 that my Nokia-3310 mobile has also been taken away." "It is true that I have not stated in my complaint as to who took away the mobile." "My complaint was dictated at about half past three after the incident had occurred. I dictated the complaint and the police wrote down the same. I was totally conscious at the respective time." Page No. 373:- "It is true that in my deposition of Exh-20 in the Chief Court I have dictated that therefore, when the accused persons were about to escape, they snatched away my Nokia mobile having model No. 3310." "It is true that I have stated in my deposition on oath of Exh-23 that, and my Nokia mobile having model No. 3310 was also snatched away." Page No. 377:- "It is true that I have dictated in my deposition of Exh-23 that thereafter, they came to my office to find out the truth and they stated over there also that you have given the information. Therefore, I stated that I did not give information to the house of the girl. Thereafter, Daxesh Patel phoned Rosy, sister of Kelvina from there and he made me to talk to her. Therefore, I stated that I have not seen your house and I have no information. Therefore, all of them attacked me and I was assaulted in front of the STD." "It is true that I have not dictated this fact in my complaint." "It is true that I have dictated in the deposition of Exh-23 that when I went home, Daxesh Patel, son of Raman Patel and Viral Christi and two fair boys of the owner of STD located below my office assault me. Therefore, I went home. Thereafter, all these boys came to my house and they assaulted me in front of my house. Therefore, as I went into the compound of my house, all these boys entered into the compound of my house and the son of Patel inflicted a pipe blow on my head in front of veranda; the pipe of made of iron." "It is true that I have not stated this fact in my complaint." "It is true that I have dictated in my deposition of Exh-23 that, therefore, I was bleeding." "It is true that I have not dictated this fact also in my complaint." Page No. 391:- "I know the difference between a complaint and an application. I have dictated in my deposition of Exh-23 that I gave complaint to the office of Nadiad Town Police Station on my letter pad. I have dictated in my deposition of Exh-23 that I gave complaint to the office of Nadiad Town Police Station on my letter pad. My complaint of Exh-60 is shown to me; this complaint is not written on my letter pad." Page No. 393:- "It is true that, I stated such in the deposition which is recorded in the Chief Court vide exhibit 20 that, at the time of making a phone call at the house of his wife Calvina Vinubhai Parmar from the phone of Daxesh Patel, I stated as to why you give my name? I have even not seen your home and after putting hand on the bible, I stated that, I have not given the information at the house of this girl. However, all the persons stated that, I have given the information." "It is true that, I have not stated any such fact in my complaint." It is true that, I stated such during my deposition of exhibit 20 in the Chief Court that, when the scuffle took place, they told me to get it proved, therefore, I went to my office to prove it. At that time, Daxesh Patel, Viral Khristi, two fair sons of the owner of S.T.D., Raman Talati's son and Sunil Chauhan's son beat me. Therefore when I went to my home after closing the office, the accused persons came to my home on their motorcycles and beat me outside the home. Therefore, I opened the gate and went to the compound of my home for self-defence, at that time, all the accused persons rushed into my home and gave me kicks and fists blows. Therefore, I fell down in heavily bleeding condition. As I made shouting, the neighbours rushed. When the accused persons were running, they snatched my mobile phone - Nokia 3310 and spoke abusive words and as the neighbours came, they told Sardarji that, even Nadiad Police cannot come where they are present." "It is true that I have not stated any such fact in my complaint." "It is true that, I have stated such in my deposition of exhibit 23 that, thereafter, they came to my office to find out the truth and they also told there such that, I have given the information. Therefore, I stated that, I have not given the information at the house of the girl. Therefore, I stated that, I have not given the information at the house of the girl. Thereafter, Daxesh Patel made a phone call to Rozi - Sister of Calvina and made her to talk to me. Therefore, I told that, I have not seen your house and I also do not know you." "It is true that this fact is not in the complaint and also not in the deposition of exhibit 20 recorded in the Chief Court." 21. It has also come on record that the original complainant, who is an Advocate was compelled to apologies in wrong before learned Chief Judicial Magistrate for producing the false person in the Court. It has also come on record that the suit filed by complainant against his father and other and while passing order below Exhibit 5 in the suit, the Civil Court has specifically observed that the original complainant had tried to create evidence by breaking open the lock to prove his possession. 22. Considering the overall facts and circumstances of the case, we are of the firm opinion that it is not safe to convict the original accused solely relying upon the deposition of the original complainant. There is no other corroborative evidence of any other witness led by the prosecution. Other witnesses, who are examined at Exhibits 78, 80, 82, 85, 88 to 91 and 95 as well as Exhibits 96, 99 and 103 have not supported the case of the prosecution. Even the place of the incident at his house/resident is also doubtful and not proved. Under the circumstances, the learned trial Court has committed grave error in convicting the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code. However, as such no error has been committed by the learned trial Court in acquitting the original accused Nos. 2 to 4 and 6 to 8. At this stage, it is required to be noted that though the original accused No. 1 was charged for the offences punishable under Sections 504, 506(2),325, 394, 395, 397, 451 read with Section 114 of the Indian Penal Code, but he has been convicted for the offences punishable under Sections 452 and 323 of the Indian Penal Code and he has been acquitted for other charges and the State has not preferred any appeal challenging his acquittal for other offences. 23. 23. In view of the above and for the reasons stated in the impugned judgment and order convicting the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code cannot be sustained and deserves to be quashed and set aside and accordingly, quashed and set aside. Under the circumstances, Criminal Appeal No. 2506 of 2009 deserves to be allowed and accordingly, allowed. Consequently, Criminal Appeal No. 138 of 2010 for enhancement of sentence imposed by the learned trial Court, while convicting the original accused No. 1 for the offences punishable under Sections 452 and 323 of the Indian Penal Code, deserves to be dismissed as once the original accused No. 1 is acquitted, there is no question of further enhancement of sentence. 24. In view of the above and for the reasons stated above, the impugned judgment and order of acquittal passed by the learned trial Court, acquitting original accused Nos. 2 to 4 to 6 to 8 for the offences punishable under Sections 504, 506(2), 325, 394, 395, 397, 451 read with Section 114 of the Indian Penal Code, is hereby confirmed and Criminal Appeal No. 143 of 2010 deserves to be dismissed and accordingly, dismissed. 25. In the result, Criminal Appeal No. 2506 of 2009 preferred by the appellant - original accused No. 1 is allowed and the judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Nadiad, in Sessions Case No. 20 of 2008 dated 24.11.2009, convicting the appellant - original accused No. 1 - Dexesh Ratilal Patel for the offence punishable under Section 452 of the Indian Penal Code, to undergo sentence for one year simple imprisonment and fine of Rs. 1000/-, in default, to further undergo one month simple imprisonment and for the offence punishable under Section 323 of the Indian Penal Code to undergo sentence for 6 months simple imprisonment and fine of Rs. 1000/-, in default, to further undergo 15 days simple imprisonment is hereby quashed and set aside. On allowing Criminal Appeal No. 2506 of 2009, Criminal Appeal No. 138 of 2010 preferred by the State for enhancement of sentence imposed by the learned trial Court, is hereby dismissed as on quashing and setting aside the conviction imposed upon the original accused No. 1 and therefore, there shall be no question of enhancement of sentence. On allowing Criminal Appeal No. 2506 of 2009, Criminal Appeal No. 138 of 2010 preferred by the State for enhancement of sentence imposed by the learned trial Court, is hereby dismissed as on quashing and setting aside the conviction imposed upon the original accused No. 1 and therefore, there shall be no question of enhancement of sentence. Criminal Appeal No. 143 of 2010 preferred by the appellant - State against the impugned judgment and order of acquittal passed the learned Additional Sessions Judge, Fast Track Court No. 2, Nadiad, in Sessions Case No. 20 of 2008 dated 24.11.2009, in acquitting the respondent Nos. 1 to 6 -original accused Nos. 2 to 4 and 6 to 8 is hereby dismissed and the impugned judgment and order of acquittal passed by the learned trial Judge, acquitting the original accused Nos. 2 to 7 is hereby confirmed. It is reported that pursuant to the earlier order passed by this Court, the original accused No. 1 - Daxesh Ratilal Patel is on bail during the pendency of present appeal, his bail bond stands cancelled. Record & Proceedings to be sent back to the concerned trial court forthwith.