STATE OF GUJARAT Vs. DIPAKBHAI ISHWARBHAI BHAGAT

JUDGEMENT

(1.) BY way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short), the appellant -State has questioned the legality and validity of the impugned judgment and order of acquittal dated 28.2.1994 passed in Criminal Case No. 1649/91 by the learned Judicial Magistrate, First Class, Karjan.

(2.) THE facts of the case, briefly summarized, are that the complainant, Thakore Ambalal Patel, lodged the complaint at Exh. 17 with regard to the incident for which the accused persons are charged with having committed offences under Sections 143, 147, 148, 149, 324 and 452 of the Indian Penal Code as well as Sec. 135 of the Bombay Police Act. It is alleged in the complaint at Exh. 17 that there was election of the dairy and for canvassing of the election, the complainant, one Jagjivanbhai Ranchhodbhai, Ambalal Himmatlal Joshi and Prakashbhai Manibhai Joshi (victim) were passing near Jayhind Khadki. At that time, Kanubhai Devjibhai Patel met and he had heated discussion with Prakashbhai Manibhai as regards the election matter, which resulted in a quarrel. At that time, the accused persons, (1) Deepakbhai Ishwarbhai Bhagat, (2) Pravinbhai Iswharbhai Bhagat, (3) Rakeshbhai Ishwarbhai Bhagat, (4) Rajeshbhai Ishwarbhai Bhagat, (5) Maganbhai Varadbhai Patel, (6) Atulbhai Rameshbhai Patel, (7) Chunilal Bhailalbhai Patel, (8) Rupeshbhai Chunilal Patel, (9) Chunilal Jashbhai Patel, are said to have rushed there armed with sticks and pipes. It is also alleged that the original accused No. 2 Pravinbhai Ishwarbhai Bhagat, armed with pipe, rushed to give a blow to Prakashbhai Manibhai (victim) and Prakashbhai ran into the house of Govindbhai Becharbhai and closed the doors. However, the accused persons thrust open the door, dragged out Prakashbhai Manibhai and at that time accused No.2 -Pravinbhai Ishwarbhai inflicted the blow with the pipe on the forehead of Prakashbhai Manibhai (for short 'the victim') as a result of which he was profusely bleeding and fell down. Thereafter, other persons who were with the victim, including the complainant, intervened and therefore the accused persons (assaulting party) ran away. Therefore, the victim was rushed in a Maruti van to the Karjan Government Hospital for treatment and the complaint was lodged by the complainant Thakore Ambalal Patel, which is at Exh. 17. On the basis thereof, the complaint was registered as C.R. No. I -332/91 at Karjan Police Station for the alleged offences under Sections 143, 147, 148, 149, 324 and 452 of the Indian Penal Code as well as Sec. 135 of the Bombay Police Act. The learned Judicial Magistrate, First Class, Karjan, recorded the plea and as the accused persons claimed to be tried for the offences for which the charge was framed at Exh. 3, the learned Magistrate proceeded with the trial after recording the evidence and passed the impugned judgment and order recording the acquittal of the accused persons, which has been assailed by the appellant -State in the present appeal on the grounds narrated in detail in the memo of appeal contending, inter alia, that the learned Magistrate has erred in acquitting the accused persons though there are ample direct and indirect evidence to connect the accused persons with the offences alleged. It is also contended that the learned Magistrate has erred in not appreciating the evidence of the complainant and other witnesses including the eye witness Govindbhai Becharbhai. It is therefore contended that the learned Magistrate has erred in disregarding and appreciating the evidence and, therefore, the order regarding acquittal of the accused is improper, perverse, unwarranted on the material evidence on record.

(3.) MR . K.P. Rawal, learned Addl. Public Prosecutor, for the appellant -State fairly conceded that at the time of admission of this appeal, while passing the order dated 21.4.1995, the appeal had been rejected qua respondents -original accused Nos. 1, 3, 4, 6, 8 and 9 and it has been admitted only qua respondents -original accused Nos. 2, 5, 7 and 10. He has, therefore, submitted that as the appeal qua other persons have been rejected at the admission stage, the charges for offences under Sections 143, 147, 148 and 149 will not survive and will not be relevant. However, it was submitted that the court is required to appreciate the overt act and the material evidence qua each of the accused for whom the appeal has been admitted. For that purpose he referred to the deposition of the complainant -Thakore Ambalal Patel at Exh. 16 and his complaint at Exh. 17. Learned APP Mr. Rawal submitted that in the complaint at Exh. 17 it has been specifically stated by the complainant as regards the overt act that the victim Prakashbhai was dragged out by the assaulting party (accused persons) and the accused -respondent No. 2 armed with pipe had inflicted a blow and the victim fell down. This has not been appreciated. However, he has also, referring to the deposition of the complainant Thakore Ambalal Patel at Exh. 16, has conceded that in his deposition he has not specifically referred to the name of the accused No.2 -Pravinbhai. He has, on the contrary, stated that Prakashbhai was inflicted the blow by anyone from the crowd of 4 -5 persons. He has specifically stated that who has given the blow and who has given the blow with the stick he cannot say. Similarly, referring to the deposition of another eye witness Jagjivanbhai Ranchhodbhai, who was also there present at the time of incident, as he was also accompanying the victim Prakashbhai when the quarrel took place and he has also not specifically identified or said about any overt act. Learned APP Mr. Rawal referred to the deposition of Jagjivanbhai Ranchhodbhai. Jagjivanbhai in his deposition stated that he has also referred to the group of people including the accused persons, but he has stated that 2 -3 persons dragged the victim Prakashbhai out and there was an altercation. He has also stated that he cannot say who has inflicted the blow as there was darkness and therefore he cannot identify and say who had given the blow to the victim Prakashbhai. However, he referred to the other material evidence on record including the medical evidence and submitted that the blow has been admittedly inflicted and it has been caused by the assaulting party (the accused persons). In the complaint, the complainant has specifically referred to the name of respondent No.2 -Pravinbhai, but he has not by inadvertence or for whatever reason, stated the same in his deposition at Exh. 16. Similarly, it has not been stated by another eye witness also. Therefore, it was submitted that the court may consider the material evidence on record.