AMIT DAYALBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner is original complainant; whereas, respondent is prosecuting agency. The petitioner has not joined the original accused as respondent, since the impugned order is with reference to further investigation u/s.173(8) of Code of Criminal Procedure, wherein the accused have no right or locus standi to oppose or defend such request.

(2.) THEREFORE , at present, the respondent ­ prosecuting agency is not defending or disputing the revision when the trial Court has rejected the application for further investigation by impugned order dated 2.7.2013 in Sessions Case No.128 of 2012. Therefore, practically, the impugned order has raised the dispute between trial Court and the complainant.

(3.) IN addition to such factual history regarding litigation, bare facts of incident is also required to be considered, which categorically confirms that on 22.1.2012, some incident has taken place as alleged in the F.I.R, wherein several members of the family of the complainant, including his father Dayalbhai Keshubhai Makwana was seriously injured and received grave injuries. However, amongst all victims, atleast said Dayalbhai Keshubhai Makwana was so injured that even after taking him to hospital under the service of 108 and even after immediate treatment, since there was grave head injuries, he falls into coma and having serious effect of paralysis, which restrained him from free movement and even to speak. In view of such conditions, though his name was disclosed in the chargesheet as witness being injured persons, since the investigating agency could not record his statement during investigation, chargesheet was filed without his statement. It seems that during trial, such witness was required to be brought to the Court, because of the instructions of the Court to keep him present and, therefore, on 15.4.2013, complainant has kept the witness present in the Court premises, but considering the position of the witness, an application at Exh.65 is submitted requesting to grant one month's time, disclosing that witness Dayalbhai Keshubhai Makwana is witness in the matter and that he has been kept present before the Court as per the instructions of the Court, but, he has received serious and grave injuries because of the assault by the accused and because of such injuries, though witness is present in the Court premises, he is unable to climb the stairs of the Court and he has difficulty in speaking and thereby he is not in a condition to depose. It is further stated that however, said witness is victim by the assault of the accused and, therefore, the important and key witness in the case and, hence, one month time may be granted to allow him to depose before the Court so that he may be cured within one month and depose properly.