State of Gujarat vs Ratilal Bhanjibhai Bhatti and Others

S.R. Brahmbhatt, J.—Heard Shri R.C. Kodekar, learned Additional Public Prosecutor for the appellant. Though served, none has appeared for the accsued-respondents. Shri Bhargav Bhatt, learned counsel was requested to appear as amicus curiae on behalf of the respondents so as to assist the Court. He willingly accepted the same and made submissions extensively on behalf of the respondents hereinabove.

The appellant has preferred this appeal u/s 378 of the Code of Criminal Procedure, challenging the order of acquittal dated 13.2.2004 passed by the Learned Additional Chief Judicial Magistrate, Morbi in Criminal Case No. 70 of 2002, whereby the accused respondents hereinabove were acquitted of the charge of committing offence punishable u/s 394 read with Section 114 of Indian Penal Code.

The original complainant happened to be the driver of a Tanker, who along with his brother, who was also working as a cleaner of the Tanker bearing Tanker No. GJ-12-T-5507 while going towards Kandala on the Tanker on 28.11.2001 near the railway crossing at about 8:30 to 9:00 was intercepted by accused, who drove the vehicle and demanded papers of the vehicle and slapped driver and took Rs. 5,000/- from the pocket of the driver-complainant and the papers of the vehicle. The driver, thereafter, followed the said vehicle of the accused with his Tanker, however, could not overreached them and hence came back and reported the incident to his employer, who in turn took him to the police station for registering the offence, which came to be registered as CR No. 281 of 2001. The investigation was conducted, the accused were arrested and police report came to be filed indicating that the accused by their act of intercepting the Tanker, taking the money of Rs. 5,000/- and papers committed offence punishable u/s 394 read with Section 114 of Indian Penal Code. The Trial Court after appreciating the evidence on record, came to the conclusion that the prosecution failed in establishing its case and hence acquitted the respondents hereinabove of the charge of committing offence punishable u/s 394 read with Section 114 of Indian Penal Code vide its order dated 13.2.2004 in Criminal Case No. 70 of 2002, which is assailed in this appeal u/s 378 of the Code of Criminal Procedure.

Shri R.C. Kodekar, learned Additional Public Prosecutor submitted that there is an ample evidence available on record, which would convinced any Court of law with regard to happening of the incident between the accused and the victim. He submitted that the TI parade and the statement of the accused recorded u/s 313 of the Code of Criminal Procedure would go to show that the happening of the incident cannot be denied by anyone. However, Shri Kodekar could not indicate as to in what manner, the reasoning given by the Court for recording acquittal is perverse, nor could he point out any discrepancy in the finding recorded by the Court and the material available on record.

Shri Bhargav Bhatt, who assist the Court as amicus curiae elaborately submitted that the glaring lapses in the case of the prosecution has rightly persuaded the Trial Court for recording the acquittal as could be seen from the reasoning of the Court in Paragraph No. 11, 13 and 14 of the judgment impugned. Shri Bhargav Bhatt took this Court extensively through the testimony of the complainant, the complaint, testimony of the owner and the medical officer who is said to have been examined the complainant and indicated that the version of the accused came in the explanation u/s 313 of the Code of Criminal Procedure was found to be plausible and, therefore, the Court may not interfere with the order of acquittal u/s 378 of the Code of Criminal Procedure.

The fact remains to be noted that the incident is said to have been occurred on highway and as complainant himself has admitted that the place of incident is near by the highway restaurant namely Vashundhara Restaurant and the said restaurant was within the visible distance from the occurring of the incident. The complainant, in the complaint has narrated that he was given slaps, whereas while he was examined by the Doctor, the history given was that of fist blow and kicks blow.

The Court has also noticed that the complainant has stated that his employer happened to be a brother of police personnel namely Kanjibhai Rambhai, who is serving in the police. Though complainant said that he did not know whether at that time he was posted at Morbi or not. Shri Bhargav Bhatt invited this Court''s attention to the medical certificate at Exh.36, wherein it is clearly mentioned that the victim-complainant was brought to the hospital by Kanjibhai Ramabhai, who happened to be brother of the employer and who is the police personnel. It has come out in the cross-examination of the Doctor, who examined the victim-complainant that there was no external injury noticed on the body of the complainant. Shri Bhargav Bhatt, learned counsel was correct in contending that the essential ingredients embedded u/s 378 and 390 were conspicuously found to be absent in the entire proceedings, which would justify the reasoning adopted by the Court for acquitting the accused-respondents hereinabove. The cross-examination of the complainant indicate that when the incident happened, the complainant did say that the traffic was going on and despite that, he did not informed anyone nor anyone''s attention was attracted to it. He admitted that he did not shouted for help when the incident occurred, nor did he approached anyone sitting there, which was visible distance from the place of so called occurrence. Shri Bhatt also invited this Court''s attention to the cross-examination of the owner, PW No. 9 in whose cross-examination, it has come out clearly that the incident he had narrated with the police, which was recorded as per his say by the police, at the relevant time, though in the next statement he disputes that the complaint was taken as he dictated it.

In view of the overall facts and circumstances of the case, this Court is of the view that, even, if the second view is plausible, than the same need not be resorted to as the acquittal order is sustained unless and until, it is established by the appellant that sustaining the same, would resulted into miscarriage of justice. Looking to the scope of jurisdiction u/s 378, this Court is of the view that the order of acquittal needs no interference. The appeal fails and is required to be dismissed and accordingly dismissed.