Gujarat High Court
Daljitbhai Martaji Damor vs State Of Gujarat on 9 May, 2025
NEUTRAL CITATION
R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ACQUITTAL) NO.
591 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd-
==================================================
Approved for Reporting Yes No
✔
==================================================
DALJITBHAI MARTAJI DAMOR
Versus
STATE OF GUJARAT & ORS.
==================================================
Appearance:
MS.DILBUR CONTRACTOR(6388) for the Applicant(s) No. 1
MR HASMUKH A SHAH(5384) for the Applicant(s) No. 1
MR. UTKARSH SHARMA, APP for the Respondent(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Respondent(s) No. 2,3,4,5
==================================================
CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 09/05/2025
ORAL JUDGMENT
[1] The present revision application is preferred under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") assailing the correctness and validity of judgment and order of acquittal passed by the learned 6th (Ad-hoc) Additional Sessions Judge, Page 1 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined Idar (hereinafter referred to as "the Appellate Court") dated 30.06.2016 in Criminal Appeal No.35 of 2012, which inter alia quashed the judgment and order of conviction dated 25.06.2012 passed by the learned Judicial Magistrate First Class, Vijaynagar (hereinafter referred to as "the Trial Court") in Criminal Case No.485 of 1994.
[2] The brief facts leading to the filing of the present revision application are that the present revisionist applicant is the original complainant. It is the case of the applicant that on 01.09.1994, he had come to his village Chithoda from Baroda in the afternoon at around 4.00 p.m. and was going to his field. At that time, respondent Nos.2 to 5 (hereinafter referred to as "the respondents") started abusing and thereafter threw stones to assault the applicant. It is further the case of the applicant that the stone thrown by respondent No.2 - Vikram Lalji caused injury on the left knee of the applicant. As the mother of the applicant reached at the place of incident, all the respondents ran away. Thereafter, on 03.09.1994 in the morning at around 7.30 a.m., the applicant with his minor son Mukeshkumar were Page 2 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined going to Vijaynagar, when all the four accused came out of a field where they were hiding and started assaulting the applicant with sticks as well as by throwing stones. At that time, the applicant received injuries on the forehead above the left eye, on the lower part of the right hand, on the left hand and other parts of his body. He further started shouting and therefore, his mother as well as two witnesses reached the place incident and saw the accused running away. He was admitted in the hospital on 03.09.1994 and stayed as an indoor patient till 07.09.1994. Thereafter, he was referred to Himatnagar Civil Hospitals for further treatments. On 07.09.1994 First Information Report came to be lodged by the applicant, being II- C.R.No.97/1994 registered with Vijaynagar Police Station on 03.09.1994. Pursuant to the registration of the First Information Report, the investigation was carried out and the charge-sheet came to be filed against the respondent before the Trial Court. The criminal case came to be registered as Criminal Case No.485 of 1994. By way of judgment and order dated 25.06.2012, the Trial Court found the respondents guilty of offences punishable under Section 325 read with Section 114 Page 3 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined of the Indian Penal Code (hereinafter referred to as "the IPC") and convicted and sentenced them to 2 years simple imprisonment along with a fine of Rs.2,000/-. However, the respondents were acquitted from offence punishable under Sections 323, 504 and 427 of the IPC read with Section 135 of the Bombay Police Act (hereinafter referred to as "the B.P.Act"). [2.1] Being aggrieved by the order passed by the Trial Court, the respondents preferred an appeal before the Appellate Court, which came to be registered as Criminal Appeal No.35 of 2012. By way impugned judgment and order, the Appellate Court came to the conclusion that evidence are not reliable. By giving the benefit of doubt, the appeal was allowed and the respondents were acquitted by setting aside the order and judgment of conviction. This order of acquittal is now impugned in the present revision application.
[3] Heard Ms. Dilbur Contractor, learned advocate appearing with Mr. Hasmukh A Shah, learned advocate for the applicant, Mr. Utkarsh Sharma, learned Additional Public Prosecutor for Page 4 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined the State - Respondent and Mr. Vishal K. Anandjiwala, learned advocate appearing for the respondent Nos. 2 to 5. [4] It has been submitted by Ms. Dilbur Contractor, learned advocate appearing for the applicant that the learned Appellant Court has committed a grave error in disbelieving the evidence on record and finding it as unreliable. It was submitted by Ms. Contractor, learned advocate that the learned Appellate Court has found that the applicant in his evidence at Exhibit '25' stated additional facts which were not mentioned in the First Information Report, and therefore, has considered the conclusion of the Trial Court perverse, in view of the fact that the evidence of the complainant becomes doubtful. The Appellate Court has made inferences which were not required to be drawn in view of the oral evidence of the witnesses, who have supported in one way or the other, the story of the applicant. It was further pointed out that the applicant - complainant was attacked and stone pelting was done on him on 01.09.1994 at 4.00 p.m., and thereafter was again attacked and received injuries on 03.09.1994 on 7.30 a.m. The complaint was Page 5 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined filed on 03.09.1994 and the complainant was hospitalized on the same day. The neighbours, in their testimony, supported the case by stating that they were aware of the injuries but had not seen anyone. It was submitted by Ms. Contractor, learned advocate that this fact is due to the reason that the neighbours are knowing both the applicant as well as the respondents. However, without going on the testimony of neighbours, the complainant is the injured witness, the mother of the injured witness has given her testimony and there is a child witness who was there during the time of incident on 03.09.1994. All these testimonies corroborate with the incident in question and therefore, the Appellate Court ought not to have reversed the judgment of conviction. Strong reliance was placed by Ms. Contractor, learned advocate on the testimony is of the applicant - complainant Daljitbhai Martaji Damor and the child witness Mukeshkumar Fulaji. In view of such submission, Ms. Contractor, learned advocate has prayed to quash and set aside the order passed by the Appellate Court and confirmed the order passed by the Trial Court.
Page 6 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025
NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined [5] Per contra, Mr. Vishal K. Anandjiwala, learned advocate appearing for the respondent Nos. 2 to 5 has submitted that there is discrepancy in the statement of the witnesses. Taking to the testimonies of the statement of mother of the complainant as well as testimonies of the child, it was pointed out that there is big discrepancy in the testimonies of both the witnesses. It was further pointed out that the child witness was tutored and he is ultimately a family member. Relying on the observations made at para '17' and para '20' of the order passed by the Appellate Court, it was pointed out by Mr. Anandjiwala, learned advocate there is big discrepancy in the testimonies in the witnesses. Further, testimony of prosecution witness No.5, i.e., Bhikhusinh would reveal that he is not eye witness. Further, the reliance on eye witness Shankarbhai had to be discarded, inasmuch as, it can be clearly revealed from his testimony that he had gone with the mother of the complainant but he had not seen the respondents inflicting any injury to the applicant. Therefore, the testimonies of eye witnesses are contradictory to each other. It was further pointed that there were mismatch of the statements of the witnesses. The document of injury on Page 7 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined 27.09.1994 is not showing any substantive injury by respondents. In view of the same, factors of any evidence against the respondents are negative. In view of such, submission, Mr. Anandjiwala, learned advocate has prayed to dismiss the present revision application and confirm the order passed by the learned Appellate Court.
[6] Having heard learned advocates appearing for the respective parties and after perusing the material on record, it needs to be observed that there are two contradictory findings given by the Trial Court and the Appellate Court. In view of the same, it would be necessary to go to the root of the controversy and peruse the material on record. It is not in dispute that the first alleged incident between the applicant and the respondents happened on 01.09.1994 at around 4.00 p.m. The second alleged incident between the applicant and the respondents happened on 03.09.1994 at around 7.30 a.m. Therefore, first root question would be, if there was an incident between the parties on 01.09.1994 at around 4.00 p.m., then what was the reason for that incident not being reported. As far as the Page 8 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined incident of 01.09.1994 is concerned, it has been described in the testimony of the complainant as well as the mother of the complainant that there was stone pelting by the respondents on the applicant - complainant. Pursuant to which applicant had sustained injuries. The reason provided for not filing complaint to this incident was that on 02.09.1994, the mother of the applicant had gone to the police to file a complaint but she was sent back as the officers were busy. It was further ascertained that mother of the applicant was told to come at a later date to report the incident of 01.09.1994. The Appellate Court has given categorical finding of fact that the incident of 01.09.1994 is not forming part of Section 161 statement of the mother of the complainant. This theory comes only in her testimony. Therefore, there is no justification of not filing complaint of incident relating to 01.09.1994. The second alleged incident between the parties is of 03.09.1994, which is the core crux of controversy raised in the present matter. The incident happened on 03.09.1994 at around 7.30 a.m. The complaint was filed on 03.09.1994. The applicant - injured complainant was taken to hospital on 03.09.1994 at Community Health Page 9 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined Centre, Vijaynagar. In Community Health Centre, Vijaynagar, the complainant was treated by Dr. Purshotam. Thereafter, on 07.03.1994, the applicant was transferred to the Civil Hospital, Himatnagar. On 07.09.1994, the applicant was treated by Dr. Manishbhai. The medical certificate on record for treatment of the applicant is only of 07.09.1994 and not of 03.09.1994 wherein applicant was admitted for first time. This fact is not disputed and categorically accepted by Ms. Dilbur Contractor, learned advocate for the applicant. The date reflected in the medical certificate is of 27.09.1994. The names of the respondents are not given in the medical history reflected in certificate of 27.09.1994. The certificate reveals that there are minor injuries by blunt object. All these facts lead to certain introspection. The theory canvassed by the applicant for incident of 01.09.1994 is absolutely baseless and testimonies of the complainant and the mother of the complainant qua the same is absolutely contradictory. There is no medical evidence with regard to incident of 03.09.1994. The record reveals that a police intimation was given to the doctor to produce the medical certificate. This intimation is produced at Exhibit '63'. Despite Page 10 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined the intimation, there is no medical certificate for the admission of the applicant - complainant on 03.09.1994. This fact is categorically accepted by Ms. Dilbur Contractor, learned advocate for the applicant. The medical certificate that is produced is dated 27.09.1994 reflecting that the applicant was admitted to the Civil Hospital at Himatnagar on 07.09.1994. All these evidences would reveal that there is a clear doubt on the whole genesis of the incident both of 01.09.1994 as well as 03.09.1994. Therefore, all the testimonies have to be looked keeping in mind that the genesis of whole incident is absolutely doubtful and the medicate evidence produced raises clear doubt about the incident in question.
[7] The next aspect over and above the genesis in question is with regard to the testimonies of eye witnesses. There are so- called three eye witnesses, two of them are mother of the applicant i.e. Laliben who has been examined below Exhibit '30' and second one is an independent witness i.e. Shanker Punja who is examined below Exhibit '31'. The testimony of mother of the complainant reveals that at the time of the incident she Page 11 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined came at the scene of offences on hearing the voice of applicant complainant and other eye witness Shanker Punja was along with her. It was further revealed that she saw the respondents. On going through the testimony of Shanker Punja, the facts narrated therein are that he went to place of incident along with the mother of the applicant and when they have arrived at the place of incident, the proposed accused had already fled away and he had neither seen the incident in question nor the respondents. Therefore, the eye witness contradict each other. Now all these contradiction in the testimony are to be looked along with the fact that the whole genesis of the incident is very doubtful. Further the Appellate Court has given categorical findings for not considering the testimony of the complainant as well as the son of the complainant who was along with the complainant at the time of incident. Looking to this fact, the reason given by the Appellate Court for acquitting the respondents cannot be doubted.
[8] The revisional jurisdiction under Section 397 of the Code is a limited jurisdiction exercisable if the court below has Page 12 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025 NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined committed a manifest illegality or the findings are perverse and based on misreading of evidence resulting into miscarriage of justice. The principles under for Section exercise 397 of the Cr.P.C. revisional were jurisdiction highlighted in D. Stnbens Vs. Nosibolla [1951 SCR 284] as also in K. C. Reddy Vs State of Andhra Pradesh [1963 SCR 412]. In State of Maharashtra Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004) 7 SCC 659], the Apex Court reiterated that the revisional power of the High Court under Sections 397 and 401, Cr.P.C. cannot be exercised as a second appellate power and that the High Court cannot, while exercising the revisional power, undertake in- depth and minute re-examination of entire evidence. However, looking to the contradictory finding of Appellate Court and Trial Court, this Court has gone to the genesis of the matter. For the reasons mentioned and discussions made hereinabove, the reasons given by Appellate Court are absolutely justified while reversing order of Trial Court. In view of the same, all the reasons given by the Appellate Court for discarding the testimony and appreciating the evidence on record are just and proper and they are not required to be interfered with. Page 13 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025
NEUTRAL CITATION R/CR.RA/591/2016 JUDGMENT DATED: 09/05/2025 undefined [9] In view of the same, the present revision application is devoid of merits and the impugned judgment and order of the Appellate Court is required to be confirmed and is hereby confirmed. In view of the same, present revision application is dismissed with no order as to costs. Rule is discharged.
Sd-
(PRANAV TRIVEDI, J.) DHARMENDRA KUMAR Page 14 of 14 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed May 21 2025 Downloaded on : Sat May 24 06:37:20 IST 2025