HAJRABIBI VILAYATHUSEN PATHAN Vs. SHANTABEN MAKWANA AND ORS.

JUDGEMENT

(1.) RULE . Ms. Hansa Punani, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No. 5 -State.

(2.) THE present leave to appeal has been filed by the applicant -original complainant, Hajrabibi Vilayathusen Pathan against the Judgment and order dated 17.10.2014 rendered by the learned Principal Judicial Magistrate First Class, Kapadvanj, in Criminal Case No. 350 of 2007. The said case was registered against the respondents -accused Nos. 1 to 5 for the offence under Sections -384, 447, 448, 461, 219 and 114 of the Indian Penal Code.

(3.) MR . S.K. Bukhari, learned advocate for the applicant -complainant contended that in present case, sufficient documents in form of oral and documentary were produced before the learned trial Judge, but the learned trial Judge did not consider the same. He read the oral evidence of the witnesses and argued that as far as allegation made against the present respondents -accused are concerned, learned trial Judge committed a grave error by observing totally in negative manner and against the provision of law. He further contended looking to the allegation made against respondent No. 1 -Shantaben Makwna, she committed a grave error under the colour of her duty and therefore, provision of Section -197 of the Criminal Procedure Code cannot be applicable to the observation of learned trial Judge that no sanction was obtained to prosecute against respondent No. 1 -accused. He then read the evidence of PW -5 -Saiyed Memmudali Isubali, examined at Exh.50. It is disclosed by him that lock of the second room was opened with the help of iron rod and articles were taken away by all the respondents -accused. He submitted that the said articles were recovered under panchnama, but the said panchnama could not produce on record by the complainant. He then argued that presumption is required to be drawn against the respondents -accused from the evidence of the witnesses and judgment and order of the acquittal is required to be set aside. Lastly, he argued that prima -facie sufficient evidence is produced on record, but the learned trial Judge has committed a grave error in acquitting the respondents -accused and therefore, he prayed to allow this application.