Bombay High Court
The State Of Diu vs Subhash Ukad Patel on 7 December, 2012
Bench: P. D. Kode
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.305 OF 1997
The State of Diu .... Appellant
vs
Subhash Ukad Patel
Resident of Sheda Falia
Patlara, Moti Daman. .... Respondent
Mr. D.A. Nalawade, A.P.P. the Appellant.
Mrs. Teja Katdare, Advocate for respondent.
H.J. Dedhia, A.P.P. for State.
CORAM: P.D.KODE, J.
DATED : 7TH DECEMBER, 2012
ORAL JUDGMENT :
By the present appeal, the State of Diu has challenged the
judgment and order dated 20.01.1997 delivered in R.C.C. No.83 of
1993 by the Chief Judicial Magistrate, Daman acquitting the
respondent accused from the charge of commission of offence under
Section 326 of the Indian Penal Code. The said prosecution has
emerged out of the charge sheet submitted by Daman Police Station as
a result of investigation of Crime No.92 of 1993 registered with the
said police station upon complaint lodged by PW1 Navin regarding
incident of assault which had occurred on 12.06.1993 at 4.00 p.m. at
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Chheda Falia in the house of PW1 in which the respondent had
allegedly assaulted and caused injuries to PW1 by means of knife.
After completion of the investigation of the said crime, PW 7 ASI
Solanki has charge sheeted the respondent for commission of offence
under Section 326 of the Indian Penal Code.
2. According to the prosecution, on 12.06.1993 at about 16.00
hours when PW1 was in his house and his mother Smt. Lali Bhikhu
Patel was discussing hotly with their neighbour Smt. Gomtiben Patel
and her son Shankar Ukad Patel regarding black magic. PW1 was
sleeping inside the house and after hearing loud voice he came out of
his house and then said Gomatiben and her son giving abuses in filthy
language rushed at his mother for assaulting. PW1 intervened for
rescuing his mother. At that time, respondent - son of Gomati came
from the rear side of PW 1 and assaulted him twice with the knife, due
to which PW 1 sustained blood injury on his back. PW1 called his
aunt PW3 Ramilaben by shouting that respondent has assaulted him
with knife. PW 3 came at the place so also the father and mother of
PW1. PW1 was taken to the out post Moti Daman by calling rickshaw.
From the same place police sent him for medical treatment to primary
health centre Moti Daman. From the said place he was further
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referred to Marward Hospital for further treatment. He was admitted
and treated at the same place. By narrating such a matters PW1 has
lodged the complaint, upon which crime was registered.
3. Respondent pleaded not guilty to charge for commission of such
offence framed. Prosecution examined in all seven witnesses at the
trial namely injured victim PW1 Navin B. Patel, PW2 Ashokbhai Amrat
intervener in dispute and PW3 Ramilaben aunt of PW1, PW 4
Bhagwan Panchas for seizure weapon, PW5 Dr. Kaushik Rathod, who
had examined PW1 at Primary Wealth Centre, PW6 Dr. Jog who had
also treated PW 1 at Marwad Government Hospital, Investigating
Officer PW7, A.S.I. Shri Solanki. The defence of the respondent is that
of total denial. It was also his say that there was a dispute going on
between his mother and mother of PW1 and so also with PW1.
According to him as all of them had beaten his mother, he had been to
the place of PW1 and at that time PW1, his mother and father had
pelted stone on his auto rickshaw due to which glass of auto rickshaw
was broken. In the process of saving mother, the PW 1 hit on said
glass and sustained the injury and by taking advantage of the said
fact that PW 1 falsely implicated him in this case.
4. Heard the submissions of both the parties were at length. It is
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the crux of the submissions of learned A.P.P. Mr. Nalawade that the
Trial Court manifestly erred in not accepting the evidence of injured
witness PW1 and so also that of eye witnesses PW2 and PW3. He
urged that the Trial Court erred in discarding the evidence of PW1
inspite of the fact of himself being injured in incident was duly
established by the prosecution by adducing the evidence of PW5 and
PW6. He urged that upon proper appreciation of the cogent evidence
adduced the Trial Court could not have reached the finding of the
prosecution having failed to prove the charge for which the
respondent was tried. He urged that the reasons given by the Trial
Court for not accepting the evidence of PW1, PW2 and PW3 are
fanciful. He, thus, submitted that the judgment delivered by the Trial
Court is not only erroneous but perverse due to the same being based
on surmises rather than the plausible inferences arising from the
cogent evidence adduced. He, thus, prayed for quashing and setting
aside the judgment and order of acquittal passed by the Trial Court
and prayed for convicting and sentencing the respondent for the
charge of offence proved by allowing the appeal.
5. Mrs. Katdare, learned counsel for the respondent vehemently
opposed the said submission and supported the judgment delivered by
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the Trial Court. It was urged that the perusal of the judgment clearly
reveals that the Trial Court has properly assessed the prosecution
evidence and particularly that of PW1, PW2 and PW3. It was urged
that after taking into consideration the variance occurring in the
testimonies of PW1 and so called eye witnesses, the Trial Court for
weighty reasons, came to the conclusion of their evidence does not
inspire confidence. It was urged that neither the judgment delivered
by the Trial Court is erroneous, much less perverse and as such finding
of acquittal arrived by the Trial Court, which had an opportunity to
observe the witnesses, is not liable to be interfered. She, thus,
contended that there are no merits in the appeal and the same
deserves to be dismissed.
6. The Trial Court in paragraph 8 of the judgment after duly taking
into consideration the matters stated in the medical certificate issued
by doctor Marwad Hospital, who was not examined at the Trial and
after taking into consideration the nature of injury stated to have been
sustained by the victim, observed that same was not falling within the
definition of grievous hurt as given under Section 313 of IPC and
hence, the said medical certificate or the matters stated therein even if
accepted as it is, it would not be sufficient to prove the commission of
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offence under Section 326 of of IPC. After careful consideration of the
said medical certificate it is difficult to find any fault with such finding
arrived by the Trial Court.
7. The perusal of the matters stated in paragraph 10 to 16 reveals
that the Trial Court had duly taken into consideration the evidence of
eye witnesses for arriving the conclusions reached. The said reasoning
amongst other reveals that the fact of PW2 being present at the time
of the incident as claimed by him is not very supported by the matters
stated in the First Information Report lodged by PW1. The Trial Court
observed that in view of the same and in absence of any explanation
from PW7 as to how he got the knowledge that PW2 had witnessed
the said incident, there exists substance in the submission canvassed
of PW2 in reality being not eye witness and got up witness. After
scanning the evidence of the prosecution witnesses the Trial Court
came to the conclusion of their being material contradictions in the
evidence of PW1 and PW3, inasmuch as PW1 claimed that at the time
of incident he was at his house whereas according to PW3, PW1 was
sitting by her side when the incident had occurred. Evidence of PW 3
also reveals that PW1 and PW3 are residing separately. PW1 claimed
that after sustaining injury he had called for PW3 and thereafter PW3
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reached the said point, while PW3 claimed that she was already at the
site. The discussion reveals that the Trial Court has duly taken into
consideration the variance in between the claim of the witness
regarding the place at which the incident had occurred. Without
enlisting all such variances neatly charted by the Trial Court during
the said discussions, it can be safely said that all the said observations
made by the Trial Court are in consonance with the evidence surfaced
at the Trial.
8. Thus, after careful perusal of the reasoning given by the Trial
Court in the light of the evidence surfaced at the trial, it is difficult to
accept the submissions made by the learned A.P.P. that the said
reasoning is not only erroneous but perverse. Since at the criminal
trial, the guilt of culprit is required to be proved beyond pale of doubt
by cogent evidence and merely because a person had sustained an
injury does not give sanctity to his claim, it is difficult to accept the
submission that the Trial Court committed error in disbelieving
testimony of injured witness PW1. In the same context, it can be
added that in the event of the injured person not knowing the name of
the assailant, then, the possibility of himself falsely implicating
cannot be ruled out. Having regard to the said feature and
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considering the weighty reasons given by the Trial Court in discarding
the testimony of PW1, on the basis the material contradictions
occurring in between his evidence and other prosecution evidence
and/or not accepting the claim of PW2 and PW3 of having witnessed
the incident cannot be faulted. In view of the said presumption of
innocence of appellant strengthened by the order of acquittal, for
weighty reasons recorded by the Trial Court, the same is not liable to
be disturbed. For the reasons canvassed by the learned A.P.P. There
are no merits in the appeal, the same deserves to be and accordingly
stand dismissed.
(P.D.KODE, J.)
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