SAIYED BILLYMIYA NURALI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is preferred by the original complainant challenging the judgment dated 16.5.12 recorded by the learned Additional Sessions Judge, Mehsana in Sessions Case No.139 of 2010 under which respondent No.2, original accused was acquitted of the offence punishable under sections 395, 397, 506(2) and 427 of the Indian Penal Code read with section 135 of the Bombay Police Act of which he was originally charged. Having perused the judgment under consideration and other relevant materials with the assistance of the learned counsel for the appellant as well as the learned APP, we see no reason to entertain the appeal. Primarily, as a complainant, he would have to seek leave to appeal which has not been done in the present case. Had this been the only technical objection, we would surely have granted time to the counsel to bring such an application before us. We, however, find that the State had independently appealed against the very same judgment. The application for leave to appeal however came to be dismissed by a Division Bench of this Court by a speaking order dated 11.2.2013. After considering the evidence on record, the Court was of the opinion that there was unexplained delay of 4 hours in lodging the FIR after the alleged incident. There were discrepancies with respect to the weapon allegedly used and the injuries received. There were discrepancies in the testimonies of the witnesses also. There were allegations of previous animosity between the two sides. On such basis, the application of the State seeking leave to appeal came to be turned down.

(2.) IN view of such development as well as independently also, when we find that looking to the scope of the appeal against acquittal, there is no possibility of reversing the decision of the learned Additional Sessions Judge, this appeal is not required to be entertained and the same is therefore dismissed. Before closing we may record the statement of the learned counsel for the appellant that the co-accused were tried separately and have been convicted for offence under section 323 of the IPC. They have preferred appeal against such conviction and the said appeal is pending before this Court. Surely, such appeal would be decided on the basis of evidence on record.