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2017 DIGILAW 1234 (GUJ)

State of Gujarat v. Bhupatsang Lakhaji Jadeja

2017-07-04

ANANT S.DAVE, R.P.DHOLARIA

body2017
ORDER : ANANT S. DAVE, J. 1. This application is preferred by the State of Gujarat-applicant-appellant in a proposed appeal under Section 378(1)(3) of the Criminal Procedure Code, 1973, seeking leave to appeal against the judgment and order of acquittal dated 28.02.2017, recorded by the learned Sessions Judge, Kachchh-Bhuj, in Sessions Case No. 44 of 2014, by which respondent-accused came to be acquitted for the offences punishable under Sections 436, 452, 504, 506(2), read with Section 114 of the Indian Penal Code and Section 135 of the Gujarat Police Act. 2. In the backdrop of prosecution case, the complainant-Pethabhai Paraghi was residing at village Lafara and having agricultural land at village Vadala and on 22nd February, 2014, respondent-accused entered into the house of the complainant and took him to Bhuj. The accused informed the complainant to give possession of the agricultural land situated adjacent to the mining field of the accused, which was denied by the complainant and accused has inflicted slaps and threatened him to kill by fire arms. All the accused destroyed the fodder and caused damage to the tune of Rs. 4,000/- for which FIR being C.R No. I-37 of 2014 was lodged with Mundra Police Station. The accused attacked with iron pipe, gun and dharia and after committing crime, they had escaped. At the end of the investigation, the case was tried by the Sessions Court in which oral as well as documentary evidence came to be examined. 3. For the purpose of considering this application seeking leave to appeal, learned APP has placed reliance upon testimonies of eyewitnesses namely, PW-3 at Exh:19, PW-4 at Exh:20, PW-5 at Exh:21 and PW-6-doctor-Dingat Kalidas Dixit who was medical officer of Community Health Center, Mundra and on 23rd February, 2014, who examined the injuries of the complainant. Learned APP submits that all the witnesses are reliable and their presence at the scene of crime was natural and they have also identified the accused and it is supported by medical evidence and therefore, learned trial Judge ought to have believed the case of prosecution resulting into conviction of the accused. Therefore, leave to appeal as prayed be granted so that appeal can be heard and decided finally on merit. 4. We have carefully gone through the records of the case made available to us and judgment and order under challenge and submissions made by the learned APP. Therefore, leave to appeal as prayed be granted so that appeal can be heard and decided finally on merit. 4. We have carefully gone through the records of the case made available to us and judgment and order under challenge and submissions made by the learned APP. The fact remains that the incident took place on 22nd February, 2014 at about 9:30 p.m and the complaint was lodged on the next day around 7:05 p.m, therefore, there is delay of about 21 hours. It is born out from the record that the accused and the complainant were not in good terms and mining field was granted in favour of the accused No. 3 for which protest was registered by the complainant and damage was caused to the mines. The learned Judge has examined all eyewitnesses but in their cross-examination it is not born out that they had seen all the accused with weapon allegedly possessed by them for commission of crime and that it was during night hours and in absence of electricity it was not possible for them to clearly identify such accused. Besides injuries on the body of complainant, who were treated by Dr. Dixit and in his cross-examination, he did not reveal that any injury was noticed. The behaviour and conduct of the complainant and narration of the events if tested on the touchstone of the testimonies appear with material contradiction for which benefit is given to the accused. Even independent witnesses were also not supporting the theory of disputes between the parties namely, complainant and accused side and the same is rightly appreciated by the learned trial Judge warranting no interference in exercise of powers under Section 378 of the Cr.P.C 5. In view of the above, leave to appeal is refused. Consequently, the present appeal also stands dismissed.