DHIRAJLAL VANMALIDAS THAKKER Vs. B M RAO

JUDGEMENT

(1.) The appellant-complainant has invoked the appellant jurisdiction of this court under Section 378 (4) of the Code of Criminal Procedure, 1973 (the Cr. PC for brief) for questioning the correctness of the judgment and order of acquittal passed by the learned Metropolitan Magistrate of Court No. 13 at Ahmedabad on 30th September 1980 in Criminal Case No. 1392 of 1978. Thereby the learned trial Magistrate acquitted respondent No. 1-accused of the offence punishable under Sections 324 and 323 of the Indian Penal Code, 1860 (the Indian Penal Code for brief).

(2.) The facts giving rise to this appeal move in a narrow compass. It is the complainant's case that he was at his hotel on 17th October 1978 and his servant informed him that his wife was being beaten by one Dayabhai, his wife and his daughter at about 3.30 p.m. on that day. He thereupon went to the spot and tried to intervene and rescue his wife but in the process Dayabhai slapped him twice. In the meantime, according to the complainant, the police mobile van arrived on the scene and took away both Dayabhai and the complainant. The complainant was kept in the police lock-up as he was stated to have been found by the police in a drunken state. According to the complainant, he was not released on bail though an attempt was made to get him released on bail in the late evening on that very day. He was released on bail the next day at about 11.30 a.m. on the surety given by one Ramanlal in the sum of Rs. 750. It is the case of the complainant that during his police lock-up he was severely beaten mainly by respondent No. 1-accused with stick and he was also given burn patches in his left palm and on the dorsal of his right hand with cigarette butts. He is reported to have given this information to his brother-in-law, named, Hasmukhbhai, and his companion Natwarlal when he was released on bail. They thought of seeking some advice. So the complainant is stated to have approached one Municipal Corporator Jivandas Damani. He was found sitting with another Municipal Corporator Rohit Patel. It is the case of the complainant that he was advised to go to the Police Commissioner's Office and he was given a chit on the Police Commissioner. Apropos, he in the company of his brother-in- law and his friend went to the Police Commissioner's office. His complaint was reocrded thereat on 18th October 1978. It appears that six days later he filed his complaint of the incident before the Metropolitan Magistrate of Court No. 13 at Ahmedabad on 24th October 1978 charging respondent No. 1-accused with the offences punishable under Secs. 324, 323 and 114 of the Indian Penal Code. It came to be registered as Criminal Case No. 1392 of 1978. On issue of process, respondent No. 1 accused appeared. The charge against him was framed on 13th September 1979. Respondent No. 1-accused did not plead guilty to the charge. He was thereupon tried. After recording the evidence on the side of the complainant and after recording the further statement of respondent No. 1-accused under Sec. 313 of the Cr. PC and after hearing arguments, by his judgment and order passed on 30th September 1980 in Criminal Case No. 1392 of 1978, the learned Metropolitan Magistrate of Court No. 13 at Ahmedabad acquitted respondent No. 1-accused of the offences punishable under Secs. 324 and 323 of the Cr. PC. That aggrieved the original complainant. He thereupon invoked the appellate jurisdiction of this court under Sec. 378 (4) of the Cr. PC for questioning its correctness.

(3.) At the time this appeal was taken up for hearing, it was found that the appellant did not respond to the notice served to him as his former advocate came to be elevated. Thereupon, this court thought it fit to appoint learned Advocate Shri Y.S. Lakhani to represent the appellant-complainant in this appeal. It appears that, in the meantime, the appellant's son appears to have made some inquiry about this appeal in this court and he was informed that learned Advocate Shri Lakhani was appointed on behalf of the appellant to assist this court in this appeal. At that stage, learned Advocate Shri Lakhani gathered information about the death of the original appellant during the pendency of this appeal and it was so reported to this court. It is however a settled principle of law that the death of the appellant-complainant would not result in abatement of his appeal and the fate of his appeal has to be decided on its own merits in view of the binding ruling of the Supreme Court in the case of Khedu Mohton vs. State of Bihar, reported in AIR 1971 Supreme Court at page 66. In that view of the matter, I have again thought it fit to avail of services of learned Advocate Shri Lakhani to assist this court for the purpose of this appeal though the original appellant was no longer alive.