Maganbhai Bhaichandbhai Patel vs State of Gujarat and Others

J.C. Upadhyaya, J.—The petitioner who is first informant in Criminal Case No. 4967 of 1997 preferred this Criminal Revision Petition u/s 397 read with Section 401 of the Code of Criminal Procedure (in short the Cr.P.C.) challenging the order of acquittal recorded by JMFC, Patan on 21/7/2007 in Criminal Case No. 4967 of 1997 whereby the respondent Nos. 2 to 6 herein who were original accused in the aforesaid criminal case came to be acquitted for the charges of commission of offence punishable u/s 504, 506(2) of Indian Penal Code and Section 183 and 184 of the Gujarat Panchayat Act.

Heard learned advocate Mr. M. K. Patel for the petitioner, learned APP Mr. Maulik Nanavati for the respondent-State and learned advocate Mr. Malik for respondent Nos. 2 to 6 (original accused).

Learned advocate Mr. Patel for the petitioner submitted that the Trial Court committed serious illegality in not properly appreciating the evidence on record. It is submitted that considering the evidence of Panch witness Saileshbhai Haribhai, Exh.40, the factum of damage is established. Considering the evidence of first informant Maganbhai, Exh.26 and evidence of Jayantibhai, Exh.39, the involvement of all the five accused persons in the incident is established. Despite this, the Trial Court came to the conclusion that the prosecution has failed to prove the case beyond any reasonable doubt against the accused persons though as a matter of fact, there was cogent, clear and trustworthy evidence on record to record conviction of all the five accused persons. Learned advocate Mr. Patel took me through the oral evidence of the aforesaid three witnesses and submitted that the Trial Court committed illegality and irregularity in recording acquittal of the accused persons. Therefore, it is submitted that the revision petition deserves to be allowed.

Learned advocate Mr. Malik for the respondent Nos. 2 to 6 during the course of the argument, supported the impugned judgment rendered by the Trial Court and submitted that considering the evidence of the three witnesses relied upon by the petitioner in its true perspective would reveal basic contradiction and discrepancies which go to the root of the prosecution case and therefore the learned Trial Judge rightly recorded acquittal of the accused persons giving benefit of doubt. Therefore, it is submitted that the revision petition may be dismissed.

Heard learned APP Mr. Nanavati for respondent No. 1-State.

There is no dispute that the State did not challenge the order of acquittal recorded by the Trial Court by preferring any acquittal appeal u/s 378 of Cr. P. C. Needless to say that the scope and powers of this Court while exercising the revisional powers vested in this Court u/s 397 read with Section 401 of the Cr. P. C. are very limited. This Court can test only the correctness or legality or propriety in finding recorded by the subordinate court. Considering Sub-clause-3 of Section 401 of Cr. P. C., it is outright made clear that nothing in this Section shall be deemed to authorize the High Court to convert a finding of acquittal into a conviction. However, in case if this Court comes to the conclusion that the order of acquittal passed by the subordinate Court is either incorrect or illegal or improper, retrial can be ordered.

In light of the aforesaid background if the evidence adduced by first informant Maganbhai at Exh.26 and the evidence of witness Jayantibhai-Exh.39 is considered, it clearly transpires that basic contradiction and discrepancy emerge from the evidence which may go to the root of the prosecution case. About the incident first informant Maganbhai says that at the time when he found 40 to 50 cattle causing damage to the standing crop in his field, all the accused persons were standing besides the hedge of the field. Moreover, according to his version at the time when he saw cattle causing damage in his field and when he asked the accused persons to see that the cattle are removed from his field, the accused started using abusive languages. According to him, hearing the sound of commotion, his brother witness Jayantibhai who was at the relevant time in a neighbouring filed came to his rescue.

7.1. If the evidence of witness Jayantibhai is seen, different picture emerges. According to this witness Jaynatibhai at about 6:00 p.m. in the evening on the date of incident he himself and his brother-first informant Maganbhai came near their field and they saw all the five accused along with their cattle inside their field and the cattle were causing damage to the standing crops. He does not say that upon hearing sound of commotion he rushed near the field of his brother first informant Maganbhai. Whereas, as stated above, first informant Maganbhai does not say in his evidence that he himself and his brother witness Jayantibhai both went near their field together and saw the incident.

In the impugned judgment, the learned Trial Judge evaluated and appreciated the evidence adduced by the prosecution and ultimately came to the conclusion that the prosecution failed to prove its case beyond any reasonable doubt against the accused. Therefore, the benefit of doubt was given to accused persons. About the damage in the field there may not be any dispute. The important aspect of the matter is that the prosecution shall prove beyond reasonable doubt the involvement of the accused persons in the incident. The learned Trial Judge came to the conclusion that involvement aspect of the matter cannot be said to have been proved beyond reasonable doubt. The learned Trial Judge rightly did not rely upon the oral evidence of the witnesses which is not safe to base a conviction.

When such is the situation, I do not find any reason to come to the conclusion that the order of acquittal recorded by the Trial Court is either illegal, improper or incorrect. The revision application therefore, deserves to be dismissed.

For the foregoing reasons, the Criminal Revision Application stands dismissed. Rule discharged.