(1.) The present Appeal under Section 378(1)(3) of the Criminal Procedure Code, 1973 is directed against the judgment and order delivered by the Additional Sessions Judge, Gondal in Sessions Case No.110/1993 dated 06.09.1994 recording acquittal of the accused of the charges for the offences under Sections 355, 325, 323, 354, 504, 506(2), 509 read with Section 114 of the Indian Penal Code, under Section 37(1) read with Section 135 of the Bombay Police Act and under Sections 3(1)(10) and 3(1)(11) of the Atrocity Act.
(2.) The facts of the case briefly summarized are as follows : -
(3.) Learned APP Ms. Bhatt has referred to the impugned judgment and order and also the testimonies of the witnesses including complainant, PW 1, Exh. 22, PW 5, Samatbhai Govabhai (father), Exh. 26, PW 11, Laxmiben Samatbhai, Exh. 38 and others including the medical evidence in the form of testimony of PW 6, Dr. Jamnadas Makwana, Exh. 27 and his medical certificate at Exh. 17 as well as testimony of PW 9, Dr. Khodaji Solanki, Exh. 34 and the medical certificate at Exh. 35 and also PW 10, Dr. Govindji Makwana, Exh. 36. She has referred to the these testimonies and tried to submit that as stated by the witnesses including the complainant, who is an eyewitness, he had tried to intervene along with his wife and received injuries, for which, the medical certificate is also produced, which is corroborated by the testimony of other witnesses like PW 5 (father) at Exh. 26. She submitted that the testimonies of these witnesses are corroborated by medical witnesses as stated above. Therefore, learned APP Ms. Bhatt submitted that the presence of the accused persons at the scene of offence at the house of the complainant and assault to the father is clearly established resulting into offence of trespass. She submitted that this incident has to be read in background of the earlier incident, where Laxmiben was abused and her modesty was sought to be outraged. Learned APP Ms. Bhatt submitted that as could be seen from the testimony of witnesses including the victim that the accused persons had audacity to not only abuse and assault her or make an attempt to outrage her modesty but when she proceeded towards her house, they followed her and even beaten the father at the house in their own house. Learned APP Ms. Bhatt therefore submitted that inspite of clear evidence both with regard to the offence of trespass and outraging the modesty under Section 354 of the IP Code with corroborating the medical evidence, the Court below has conveniently ignored the relevant material and has recorded acquittal without any justification. Learned APP Ms. Bhatt has also stated that the observations have been made without proper evidence and considering the relevant material. Learned APP Ms. Bhatt submitted that not only the Court below has committed an error in appreciation of evidence resulting into perversity but has conveniently and deliberately not considered the material and evidence on record. For that purpose, she pointedly referred to the notification issued by the Police Commissioner under the Bombay Police Act regarding the prohibition of weapons produced at Exh. 16 inspite of this notification in force though it was placed on record, the Court below has stated that the prosecution has failed to establish and prove any such prohibitory order. Similarly, learned APP Ms. Bhatt has also referred to the medical evidence with regard to the injuries caused to the victims and submitted that conveniently it has not been mentioned with regard to the injuries, which have been found merely because there is some mistake in describing the injuries, however, the fact remains that the injury has been caused due to assault, which is established by the medical evidence. Again learned APP Ms. Bhatt submitted that the observations are perverse and contrary to the material on record and evidence. Again learned APP Ms. Bhatt referred to Exh. 26 and submitted that though the entry or copy of the entry as regards Bhayavadar Police Station is placed on record, the observations have been made that no entry of this diary is produced on record by the prosecution. Learned APP Ms. Bhatt therefore submitted that this itself suggests casual approach resulted in perversity. She submitted that no person would come to a conclusion based on this material on record and, therefore, this is a fit case to entertain the present appeal.