GOPAL BALAJI PRABHU Vs. BABUSO KUSDO NAIK

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 1-11-2004 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 (11) 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 : on 12-3-1996, the complainant accompanied by his friend Sudesh Tari, bailiff Shri Raghunath Tamankar and Photographer Shri Socorro Moraes went to the house of the accused for effecting service on the accused as well as wife of accused No. 2 and another son. As per direction through Civil Court, photographer took photos and bailiff effected service of summons on accused no. 1 and sat near the house of the accused to effect service on the wife of accused No. 1, who was expected to come soon. The complainant along with photographer and his friend went to his house situated at a distance about 100 metres for having tea. Meanwhile, the accused No. 1 armed with stick came running to the house of complainant, abused his parents and entered the verandah of the house and assaulted the complainant and his parents with sticks and threatened to kill them. On the same day, the complainant lodged report at canacona Police Station which was registered as N. C. Case No. 126/1996. Since the police did not investigate the offences, the complainant filed a private criminal case against the accused on 14-5-1996. The learned Magistrate issued process against the accused under sections 448, 323, 504 and 506 (II) of Indian penal Code. The complainant examined seven witnesses in support of his case. They are P. W. I, the complainant, P. W. 2 Balaji Porob Bhagwant Konkar, P. W. 3 sudesh Tari, P. W. 4 Dr. A. Dessai, P. W. 5 Shrikant Naik, Head Constable, P. W. 6 raghunath Tamankar, the bailiff and P. W. 7 Socorro Moraes, the photographer. P. W. 2 Balaji died during the pendency of the case and as such he could not be cross-examined after framing of charge. The learned Magistrate upon appreciation of the materials, held that the prosecution was not successful in proving the offences beyond reasonable doubt against the accused and consequently acquitted the accused. The Magistrate recorded the acquittal mainly on the following grounds :

(3.) MR. Dessai, learned Senior Counsel appearing for the appellant/ complainant submitted that the reasons given by the Magistrate for acquitting the 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 vis-a-vis 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. I Gopal, P. W. 2 Balaji, P. W. 3 Sudesh as interested witnesses in as much 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 : i) State of Maharashtra vs. Tulshiram Bhanudas Kamble and ors. reported in AIR 2007 SC 3042. ii) Main Pal and another reported in (2004) 10 SCC 692. iii) Turner Morrison and Co. vs. K. N. Tapuria reported in 1993 Cri. L. J. 3384. iv) State of Rajasthan vs. Smt. Kalki and another reported in 1981 (II) SCC 752.