STATE OF GUJARAT Vs. BHIKHABHAI @ MUKESH MANJIBHAI KATARA

JUDGEMENT

(1.) THE State has preferred this appeal under Section 378 of the Criminal Procedure Code against the judgment and order dated 31.3.2009 rendered by learned Additional Sessions Judge, Sabarkantha at Himmatnagar, in Sessions Case No.160 of 2006. The said case was registered against the present respondent original accused for the offence under Sections 403, 323, 504, 114 of the Indian Penal Code and Section 135 of the Bombay Police Act.

(2.) THE case of the prosecution is that at about 10.00 Hrs. at night, while the complainant was present at his house, he heard cries of his brother Harisinh from field of respondent No.3 Manjibhai Surmabhai Katara and accordingly the complainant and his another brother Dadusinh and Hathisinh had gone in the field of respondent No.3 and seen that they were quarreling with each other. At that time, the respondent Nos.2 and 3 were armed with stick and they were inflicting stick blows to brother of the complainant Harisinh, therefore, the complainant intervened and therefore, the respondent No.3 inflected stick blow on the head of the complainant. The respondent No.1 inflicted stick blow on hand of brother of the complainant and the respondent No.3 inflicted stick blow on the hand of Harisinh. It is also the case of the prosecution that the complainant and his brothers were armed with stick and the complainant ran away with stick, whereas his brother Hathisinh and Dadusinh had thrown their stick on the spot of incident and ran away. At that time, Harisinh informed the complainant that he lost his Nokia 2600 mobile in the field of respondent No.3. It is further case of the prosecution that brother of the complainant was passing through the field of respondent No.3 and the incident took place with regards to cattle road and at that time, the respondents used filthy language against the brother of the complainant as well as beaten with stick. Therefore, the compliant being CR. No. I 97 of 2006 was registered before Gambhoi Police Station, for the offences punishable under Sections 403, 323, 504, 114 of Indian Penal Code and Section 135 of the Bombay Police Act against the accused.

(3.) MS . Hansa Punani, learned APP appearing for the State has submitted that the order of acquittal is against law and evidence on record. She submitted that the learned Judge has erred in not appreciating the deposition of the witnesses. She submitted that the the complainant examined at Exhibit 33, wherein it is clearly deposed by him that the respondents were armed with sticks and they inflicted stick blows to the complainant and his brothers and this witness identified the muddamal stick. She further submitted that from the evidence of Hathisinh Mansinh examined at Exhibit 37, it appears that the respondents were abusing filthy language to the brother of the complainant. She also submitted that the evidence of Dadusinh examined at Exhibit 38, it shows that the incident took place on 4.7.2006. This witnesses also stated that the respondents were beating Harisinh, who is witness of the prosecution. She also submitted that as per the provisions of Section 319 of the Indian Penal Code, the offence alleged against the respondents, is prima facie established. She also submitted that the accused took away Nokia mobile of the witness Harisinh and same is proved by the prosecution beyond reasonable doubt. Therefore, offence against the accused is proved and the trial Court has committed an error in acquitting the accused. She also submitted that the learned Judge has erred in not properly construing and interpreting the evidence adduced by the prosecution and has erred in acquitting the accused. She, therefore, submitted that this appeal may be allowed and the impugned judgment may be reversed.