STATE OF GUJARAT Vs. DHIRAJBHAI NATVARLAL KOLI PATEL

JUDGEMENT

(1.) PRESENT appeal u/s. 378 of the Code of Criminal Procedure, 1973 arises out of the judgment and order dated 11th October 1991 passed by the learned Additional Sessions Judge, Surat (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case No. 48 of 1989, whereby, the learned Sessions Judge was pleased to acquit all the accused persons of the charges levelled against them under Sections 302, 323, 504 and 114 of the Indian Penal Code (IPC).

(2.) FACTS in nutshell of the prosecution case are that on 17th December 1988, complainant ­ Thakorbhai Ratanji along with his brother ­ Dilip had gone to water their field in which they had sown wheat. At that time, the accused persons ­ respondents herein, also came to water their field, situated nearby the field of the complainant. The accused persons asked the complainant and his brother to stop watering their field, to which the complainant denied and said that they both will share the water. The respondents ­ accused were not agreeable to that and hence, they stopped the water flow by putting stone in the canal. On complainant and his brother trying to remove the same to start the water flow, the accused persons attacked them. The accused No. 1 was having 'Dharia' with him; the accused No. 2 was having 'Pavdo' with him, whereas, accused Nos. 3 and 4 were having sticks with them. The accused abused the complainant and his brother. On asking not to abuse, the accused No. 1, who was having 'Dharia' with him, assaulted brother of the complainant, consequently he fell down. The accused Nos. 2, 3 and 4 also assaulted brother of the complainant with Pavda and sticks respectively with them. After that, the accused fled away to village Kachhol from there. The complainant took his injured brother ­ Dilip to the Olpad Government Dispensary and then to the Civil Hospital Surat, where he succumbed to the injuries. Thereby, the accused persons committed the offence under Sections 302, 323, 504, and 114 of the Indian Penal Code.

(3.) WE have heard learned Additional Public Prosecutor Mr. LR Pujari. The learned Additional Public Prosecutor submitted that the learned trial Judge has materially erred in appreciating the evidence of prosecution witnesses, which has resulted into miscarriage of justice. The learned Additional Public Prosecutor submitted that the learned trial Judge has committed an error in discarding the evidence on the ground that the complainant had not received injury in spite of the fact that he was present at the time of occurrence of the incident and on the ground that the names of two witnesses were not mentioned in the complaint. Last but not the least, the learned Additional Public Prosecutor submitted that the judgment and order of acquittal passed by the learned Sessions Judge is erroneous, contrary to law and evidence on record and is required to be quashed and set aside.