STATE OF GUJARAT Vs. SAGAR JENTIBHAI RATHOD

JUDGEMENT

(1.) THIS application has been preferred by the applicant- State of Gujarat for leave to appeal against the judgment and order dated 10.04.2012, rendered by the learned Sessions Judge, Bhavnagar, in Sessions Case No.108 of 2009, whereby the respondent ­ original accused has been acquitted of the charges levelled against him under Sections 397, 336 and 114 of the Indian Penal Code read with Section 135 of the Bombay Police Act.

(2.) THE case of the prosecution is that the complainant, Satyadev Vijaykumar Varma, has filed a complaint which is registered as I-C.R. No. 155 of 2004, at 'C' Division Police Station, Bhavnagar to the effect that on 30.08.2004 (wrongly mentioned in the judgment as 30.08.2008), at about 20.0 Hours, the respondent and another juvenile accused (who did not face proceedings before the Trial Court, being a juvenile on the date of the incident) with an intention to commit the alleged offences, came to the shop of the complainant in the name and style of 'Ganesh Precast' threatened him with a knife and looted an amount of Rs.50/- from him. The accused also hit the complainant with a stone. It is the case of the prosecution that at the relevant point of time, a Notification, issued by the District Magistrate, prohibiting the use of certain weapons was in force. After investigation, the case was committed by the learned Chief Judicial Magistrate, to the Court of Sessions, as one of the offences alleged against the accused was under Section 397 of the Indian Penal Code which is triable exclusively by such Court. After investigation, a charge-sheet was submitted against the respondent- accused. The defence of the respondent was denial. The accused was, therefore, put to trial.

(3.) IT is submitted that though the Trial Court has acquitted the respondent on the ground of lack of evidence, it has not properly considered the evidence of PW-4- the Investigating Officer, who has carried out the investigation and recorded the statements of the witnesses. He has stated that the Panchnama has been drawn and the accused have been arrested in the presence of witnesses and as there was sufficient evidence against them, they were charge-sheeted. It is submitted that though the panch witnesses have turned hostile, there is no reason to disbelieve the evidence of this police witness who has no axe to grind with the respondent. It is further submitted that the panch witnesses have identified their signatures on the Panchnama though they have not supported the case of the prosecution with respect to its contents, therefore, on this ground leave to appeal may be granted.