LATIF KASU KAKAL vs STATE OF GUJARAT

The present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction and sentence dated 25.07.2002 passed in Sessions Case No.87 of 1998 by the learned Sessions Judge, Kutch at Bhuj, whereby the learned Sessions Judge was pleased to convict the appellant for the offence punishable under Section 333 of the Indian Penal Code (hereinafter referred to as "IPC") and sentenced him to undergo rigorous imprisonment for a period of six months, and also imposed fine of Rs.1500/-, and in default of payment of fine; sentenced him to undergo rigorous imprisonment for a further period of fifteen days. The appellant was also convicted for the offence punishable under Section 447 of the IPC and was sentenced to undergo rigorous imprisonment for a period of one month, and fine of Rs.100/-, and in default of payment of fine; the appellant was sentenced to undergo rigorous imprisonment for a further period of seven days. However, both the sentences were ordered to run concurrently.

The complainant-Bharatkumar Milapchand Jain, was serving on duty on 27.06.1997 as an Assistant in the Government Ayurvedik Botanical Garden situated at village Nani Raldi. He was there for the last more than 8 years. The office of the said garden is situated at village Kukma. It is the case of the prosecution that on 27.06.1997 at about 7:45 a.m, he had reached the said garden and had resumed his duties at about 8:00 a.m. It is further the case of the prosecution that at about 12:00 noon, one person who was son of Bakheda of village Paddhar whose name he does not know had come with his sheep and goats in the Botany Garden. They were approximately 100 in number. The complainant went near him and told him to take his sheep and goats out of the garden. The said person was suddenly provoked and gave one blow of stick on the right eye and another blow on the left leg. The complainant tried to catch the stick as a result of which there was also injury on the thumb of the left arm. Thereafter, the said person also threw him on the ground and gave kick and fist blows. The complainant shouted but there was nobody to rescue him. Thereafter, the said person went away with the sheep and goats. While leaving the garden, the said person threatened to kill him if he would prevent him from grazing his sheep and goats. It is further the case of the prosecution that the complainant then went to the Superior Officer at Bhuj and informed about the incident and his superior officer advised him to file a complaint. As a result of which, he went to Bhuj Taluka Police Station and lodged his complaint on the some day at about 6:30 p.m. 2.1 It is further the case of the prosecution that the name of the accused was discovered by the complainant and had informed about the same to the Investigating Officer. The accused was arrested. The panchnama of the scene of occurrence was prepared. The statements were recorded. The complainant was examined by the Medical Officer of G.K.General Hospital, Bhuj. The certificate was obtained by the Investigating Officer during the course of investigation which revealed that there was fracture on the thumb.

As the accused was to be charged and tried for the offences punishable under Sections 333 alongwith Section 447 of the IPC, the learned Magistrate in whose Court the chargesheet as submitted, committed the accused to the Court of learned Sessions Judge, Kutch at Bhuj.

Thereafter, charge was framed at Exhibit 1 against the appellant for the offence under the IPC and read over to the appellant, to which the appellant pleaded not guilty and claimed to be tried.

In order to bring home the charges levelled against the appellant, the prosecution has examined witnesses and also produced documentary evidence in support of its case.

Thereafter, after filing closing pursis by the prosecution, further statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 was recorded wherein the appellant has denied the case of the prosecution and has pleaded his innocence. The appellant has submitted that a false case is filed against him.

After considering the oral as well as documentary evidence and after hearing the parties, the learned Sessions Judge, Kutch at Bhuj vide impugned judgment and order dated 25.07.2002 held the appellant?accused guilty to the charges levelled against him as mentioned aforesaid.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, Kutch at Bhuj, the appellant has preferred the present appeal.

Heard Mr.L.R.Pathan, leaned counsel for the appellant and Mr.N.J.Shah, learned Additional Public Prosecutor for the respondent-State.

Mr.L.R.Pathan, learned counsel appearing for the appellant, has contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He has also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Sessions Judge has not considered the probable defence of the appellant and has wrongly convicted the appellant. Mr. Pathan has drawn attention of the Court to the charge and contended that as per the so-called facts of the case, name and address of the present appellant-accused was not in the knowledge of the complainant-injured himself. He further submitted that if the contents of the FIR is perused minutely, it appears that the complainant did not know the name and address of the assailant. Learned advocate drew attention of the Court to the FIR lodged by the complainant. He submitted that if the FIR is perused, the complainant did not know the name and address of the assailant. Further, it is contended by learned advocate that the complainant did not know whether the name of the appellant-accused is ''Kakal'' or ''Bakheda''. Learned advocate submitted that after two days, the complainant could know the name of appellant-accused while he was at the Bus-stand, but from whom he got the name of accused, is not disclosed anywhere nor in the deposition. He, therefore, submitted that when there is ambiguity itself in the version of complainantwitness, the appellant-accused cannot be convicted. He further argued that even in the cross-examination of Medical Officer, she stated that such injury can be possible by a force. He then argued that the identification of the appellant-accused is not disclosed and the complainant did not know the name of the appellant-accused eventhough the present appellant-accused was convicted only on the ground of probable doubt. Therefore, the learned trial Judge has committed a grave error in convicting the present appellant-accused in absence of any cogent evidence against him. He, therefore contended that looking to the evidence produced on record, prosecution has failed to prove the case beyond reasonable doubt against the appellant and therefore, prayed that present appeal is required to be allowed and appellant is required to be acquitted from the charges levelled against him.

As against this, Mr.Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He has contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with. Mr. Shah has vehemently argued that in the present case there is only sole witness and the said witness is a public servant and during his official duty, he was beaten by the present appellant-accused and thereby caused serious injuries to him. He further submitted that it is true that at the relevant point of time, the complainant did not know the name and address of the appellant-accused, however, after two days he could know the name of the appellant-accused at Busstand. The said aspect does not come in the way to acquit the appellant-accused from the charges levelled against him. He then argued that in support of the evidence of injured witness, the prosecution examined the Medical Expert, who substantiated the case of the injured witness. He, therefore, contended that present appeal is required to be dismissed and judgment and order of conviction and sentence is required to be confirmed.

I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant.

It is true that this is a case of solitary witness i.e. the only complainant. The injury of the complainant gets corroborated through the medical expert, panchas, who drawn the panchnama after two days. In the evidence of the witnesscomplainant, it is admitted by him that initially at the time of filing of complaint, name of the present appellant-accused was not in his knowledge. He fairly admitted that after two days, he could know the name of the appellant-accused. Further, no identification was made by the Investigating Officer as well Executive Magistrate. I have not found any sufficient reason to convict the present appellant-accused for the said alleged offence. When sufficient doubt is created and probable defence is made by the learned trial Judge, learned trial Judge should have taken proper care and caution to convict the present appellant-accused. I am not in agreement with the judgment and order passed by the learned trial Judge, which is proved beyond reasonable doubt and probable defence is required to be considered in favour of the present appellant-accused.

Hence, in view of the foregoing reasons, present appeal is allowed. The Judgment and order of conviction and sentence dated 25.07.2002 passed in Sessions Case No.87 of 1998 by the learned Sessions Judge, Kutch at Bhuj, is hereby quashed and set aside. The appellant is on bail. His bail bond shall stand discharged. Since the appellant is on bail, no order in respect to setting him at liberty is passed. The appellant is hereby acquitted from the charges levelled against him in the present Sessions Case. Fine, if paid, be refunded to the appellant. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.