STATE OF GUJARAT Vs. MUKESH MEGHJI MUCHHADIYA

JUDGEMENT

(1.) This criminal appeal is preferred by the State under Section 378 of the Code of Criminal Procedure against the judgment and order delivered by learned Additional Sessions Judge, 11th Fast Track Court, District : Rajkot on 13th August, 2004 in Sessions Case No.10/2004 whereby the present respondents being accused of the said Sessions Case came to be acquitted by the trial Court for the offences punishable under Sections 307, 328, 323 to read with Section 114 of the Indian Penal Code. According to the prosecution case, on 7th July, 2003 complainant Aalabhai Bavjibhai with his son Ashwin and his nephew Ajay was coming back by auto rickshaw bearing Registration No.GJ-3-X-9667 from Rajkot and were going to their village Dhokadia. When they came near one culvert at about 8.30 p.m. near the field of one Raghubhai Makanbhai, they found one bicycle lying and obstructing the road. Complainant Aalabhai Bavjibhai requested his son Ashwin to remove cycle from the road. At that time Ashwin got down from the rickshaw and while he was removing the bicycle from the road, son of complainant's brother named as Pankaj - accused No.2, Mukesh - accused No.1 and Bhaniben - accused No.3 came running near rickshaw and Pankaj snatched bicycle from Ashwin. Pankaj and Mukesh both started beating complainant with kicks and fists. Accused No.1 Mukesh caught hold the face of the complainant and accused No.3 Bhaniben took out one tin from her and from that tin, she poured poison in the mouth of the complainant. The complainant resisted and, therefore, the tin was fallen down on the ground. In the meantime, Ashwin and Ajay both ran towards the village, but the complainant had consumed some portion of poison and during that period, one motorcycle with headlight on, passed through that road and seeing the motorcycle, accused ran away from that place. The motorcycle had passed away from that spot. Complainant felt the effect of the poison and started vomiting and was lying near culvert and other persons Mohan Samji, Pravin Premji etc. came at the spot along with Shantilal son of the complainant. Complainant was shifted to Government Hospital at Rajkot and was admitted and examined by Government Doctor. He was discharged from the Hospital on 9th July, 2003 at 12.30 and, thereafter, on 10th July, 2003, complaint was given by the complainant before the police. According to the complainant, cause of the incident was of a dispute between complainant and the accused about the land which followed with other litigations between the parties. The investigation was handed over to PSI Mansingh Hemubha Jadeja and, thereafter, to PSI B.J. Gamoti, who filed charge-sheet against all the three accused.

(2.) A charge came to be framed for the above offences against all the three respondents by learned trial Judge on 3rd March, 2004 vide Ex.6 to which all the three accused pleaded not guilty and, therefore, prosecution examined as many as 19 witnesses and produced on record documentary evidence. In statements recorded by the trial Court of the accused under Section 313 of the Code of Criminal Procedure, the accused stated that a false case had been filed against them as all the three were residing at Rajkot at relevant juncture and were not present at the scene of offence. After hearing learned APP and the defence counsel, the learned trial Judge came to the above conclusion of acquitting the accused of all the charges and hence, this appeal.

(3.) Learned APP on behalf of the State submitted that there was enmity between the parties and that has come on record. The complainant and two witnesses Ajay and Ashwin have supported and corroborated the say of the complainant and no reasons were assigned by the learned trial Judge for disbelieving them. The complainant himself is a victim of the incident and while, he was returning from Rajkot in his rickshaw the incident took place in which he identified all the accused. It is submitted that medical evidence corroborated the say of the complainant and hence, the conclusion arrived at by the trial Court is palpably erroneous and the matter requires consideration.