STATE OF GUJARAT Vs. RIZVAN HARUNBHAI MUSABHAI CHHER

JUDGEMENT

(1.) Present Criminal Misc. Application No. 16413 of 2022 has been filed by the State of Gujarat for leave to appeal under sec. 378(1)(3) of the Code of Criminal Procedure seeking leave to appeal to challenge the legality and validity of the judgement and order dtd. 14/06/2022 passed by the learned Sessions Judge, Jamnagar in Sessions Case No. 76 of 2016, whereby the learned Sessions Judge was pleased to acquit the respondent Nos. 1 to 7 - original accused Nos. 1 to 7 from the offences punishable under Sec. 120(b), 143, 147, 148, 149, 307, 323, 325 and 506(2) of Indian Penal Code.

(2.) For grant of leave to appeal, Court is required to consider whether there is prima facie case in the appeal or not for admission of the appeal and if there is prima facie case and merits in the main appeal, then and then only, leave is required to be granted and if there is no substance in the appeal itself, leave to appeal is not required to be granted. In a case where there is no substance in the appeal, to grant leave and called upon the accused and hear the advocate for the accused and then dismissed the appeal would be futile exercise. For that purpose we have re-appreciated the entire evidence on record.

(3.) On re-appreciation of the evidence on record, it appears that the complainant side and accused side are neighbours and they know each other. There is enmity between them and they quarrel frequently. However, the injured complainant - Iqbal Abdulbhai Kamora PW No. 20 Ex. 56 has not mentioned the name of the assailants before any of the doctors of different hospitals and he had stated in the history before the different Doctors that unknown persons have assaulted and caused injury to him. Even as per the evidence of Dr. Badhabhai Mohanbhai Panchasara PW No. 9 Ex. 27 and history given before him by the complainant, 8 to 10 persons who were armed with sword and dhoka made assault upon him by throwing chilli powder in the eyes of complainant at about 7.00 hours in the evening at Apanchvati and no name of the accused was disclosed before the Doctor. No statements of the persons who had taken the complainant injured to the hospital namely Sadik Husen and Arbaz Abdul Kakkal, have been recorded. Even the conduct of the complainant for implicating accused No. 7, who was student and whose examination was going on, speaks volume of things against the complainant. The evidence of the eye witnesses is also not trustworthy and there are omissions, contradictions and inconsistencies in the evidence of the eye witnesses and other witnesses regarding presence of accused and weapons used in commission of the offence. The prosecution has failed to establish the role played by each accused in commission of the offence. The evidence of the complainant is not reliable and trustworthy and even evidence of the complainant does not get corroboration from medical evidence. In the FSL report no presence of blood has been found on the muddamal weapons. The evidence of the injured complainant Iqbal Abdulbhai Kamora Ex. 56 is not reliable and trustworthy. Even the prosecution has failed to prove the presence of the accused at the place of offence. The disputes is going on between the complainant and the accused since long and they used to quarrel time and again and considering the overall conduct of the complainant, which is unnatural conduct, the possibility of false implication cannot be ruled out.