GOPAL BALAJI PRABHU KONKAR Vs. BABUSO KUSDO NAIK

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 01/11/2004 passed by the judicial Magistrate, First Class, Canacona in Criminal Case No. 30/P/1996 acquitting the respondent Nos. 1 and 2 for the offences punishable under Sections 447, 323, 504 and 506(II) of Indian Penal Code. The complaint was filed by the appellant against the respondent Nos. 1 and 2. The parties shall hereinafter be referred to as per their status before the Magistrate.

(2.) Briefly, the facts leading to filing of the present appeal are as under:

(3.) Mr. Dessai, learned Senior Counsel appearing for the appellant/complainant submitted that the reasons given by the Magistrate for acquittingthe accused are unsustainable in law. The learned Counsel submitted that since N.C. was lodged by the complainant on the day of the incident, there was no delay on the part of the complainant in filing the complaint which has been filed within the period of limitation prescribed under the Code of Criminal Procedure. He further submitted that there are no material contradictions and omissions in the testimonies of the prosecution witnesses and, therefore, the Magistrate ought to have been accepted the evidence of the prosecution witnesses. He further submitted; that P.W.I Gopal and P.W.2 Balaji were injured witnesses, therefore, their testimonies had to be accepted by the Trial Court more particularly having regard to the fact that the version of the complainant was corroborated by medical evidence tendered through P.W.4 Dr. Dessai. According to the learned Counsel, the Magistrate has not even discussed the medical evidence which fully supports the case of the complainant. The learned Counsel further submitted that the evidence of P.W.2 Balaji, is admissible under Section 133 of the Evidence Act, although he could have not been cross-examined after framing of the charge on account of his death. It is further urged that the Magistrate erred in placing reliance upon N.C. report for holding that there was contradictions and omissions in the testimony of the complainant uis-a-uis the said report and the complainant could not have been cross-examined with respect to N.C. Report since it cannot be treated as previous statement for the purpose of Section 145 of the Evidence Act. According to the learned Counsel, non- examination of the mother of the complainant was not fatal to the prosecution case. It was further urged that the Magistrate has erred in law in treating P.W. 1 Gopal, P.W.2 Balaji, P.W.3 Sudesh as interested witnesses inasmuch as no foundation has been laid by the accused to substantiate that they are interested in falsely implicating the accused. He, therefore, submitted that the complainant has been able to establish the offences against the accused beyond reasonable doubt and the findings recorded by the Magistrate are perverse warranting interference by this Court. In support of his submissions, learned Counsel relied upon following judgments: