SATE OF GUJARAT Vs. MAHENDRASINH PRITHVISINH VAGHELA

JUDGEMENT

(1.) BOTH the Appeals have been preferred by the State under Section 378 (1x3) of the Code of Criminal Procedure, against the common judgment and order delivered by Presiding Officer, 6th Fast track Court, Palanpur (Mr. V. K. Pujara), on 17th of July, 2006, in Special Case No. 76 of 2005 and in Special Case No. 77 of 2005.

(2.) IT is the prosecution case that on 1st of April, 2004, at about 21. 30 hours, PW-3 ] balubhai Dhanabhai, met complainant at village Bhanpur. At that time, PW-2 chandubhai Gadarbhai was also present. Complainant, PW-2 and PW-3 were talking amongst themselves. At that time, accused no. 1 Premsinh Joravarsinh Vaghela and accused No. 2 Mahendrasinh Prithvisinh vaghela came near them and snatched a purse of PW-3 from the hood of motor bike of PW-3. Both the accused ran away from that place. Complainant, accompanying PW-2 and PW-3, chaised both the accused and caught hold of them. Complainant stated that why the purse of PW-3 was taken away by them. Both the accused thereby provoked and started abusing complainant and assaulted him and caused injury by stick blows on his head and right hand. In this respect, complainant preferred his complaint before Ambaji Police Station on 2nd of April, 2004 at about 8. 30 a. m. before Bijesinh umedsinh Solanki - PW-6, who was at the relevant time PSI of the said Police Station. He registered the offence vide Crime register No. 11-32 of 2004. This being the offence under the provisions of the Scheduled castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Dy. S. P. of Special cell, was informed and it appears that, for the time being, PW-7 Dharmendrasinh girvansinh Gohil, was In-charge of the investigation. Thereafter the investigation was handed over to Division of Police department, where PW-9 Divisional Police officer Mohanbhai Haribhai Parmar, took over the investigation on 2nd of April, 2004 and had submitted charge sheet through PW-8 chandrakant Lalluram Vora, Dy. S. P. , special Cell. A charge sheet was submitted in the Court of learned Judicial Magistrate, first Class, at first instance against accused no. 2 Mahendrasinh Prithvisinh Vaghela, wherein accused No. 1 Premsinh Joravarsinh vaghela was shown as absconding. The said case was committed to the Court of Sessions, which was numbered as Special Case No. 76 of 2005 and it appears that thereafter accused No. 1 Premsinh Joravarsinh Vaghela might have been arrested and was committed to the Court of Sessions and the said Special Case was numbered as Special case No. 77 of 2005. The learned Trial Judge tried both the cases together and recording evidence in Special Case No. 76 of 2005, acquitted both the accused by common judgment and order of all the charges levelled against them under Sections 323, 504 and 114 of the Indian Penal Code; under section 3 (1) (10) of the Scheduled Castes and the Scheduled Tribes (Prevention of atrocities) Act, 1989 and under Section 135 of the Bombay Police Act. The State filed criminal Appeal No. 2092 of 2006 against the original accused No. 2 Mahendrasinh prithvisinh Vaghela and Criminal Case No. 2093 of 2006 against the original accused no. 1 Premsinh Joravarsinh Vaghela, as afore stated. Vide Order dated 27th of December, 2007, we Admitted the Appeals and having regard to the facts and circumstances of the case, the matters were directed to be heard finally after preparing the paper book.

(3.) LEARNED APP Mr. A. J. Desai on behalf of the State in both the Appeals and learned Advocate Mr. Kanak K. Vaghela on behalf of learned Advocate Mr. Jay Prakash umot, in both the Appeals for the respondents accused were heard at length. While going through the record and proceedings of the case and judgment and order of the learned Trial Judge, we felt that we have come across a case wherein failure of justice has occasioned.