State Of Gujarat vs Jakir @ Lalbhai Mahobatkhan ...
2023 Latest Caselaw 2436 Guj

      R/CR.MA/22173/2022                                ORDER DATED: 21/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 22173 of 2022

                     In R/CRIMINAL APPEAL NO. 2406 of 2022

                                     With
                       R/CRIMINAL APPEAL NO. 2406 of 2022
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                             STATE OF GUJARAT
                                   Versus
                   JAKIR @ LALBHAI MAHOBATKHAN BALOCH
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Appearance:
MS. C.M.SHAH, APP for the Applicant(s) No. 1
for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
           and
           HONOURABLE MR. JUSTICE M. R. MENGDEY

                                Date : 21/03/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE M. R. MENGDEY)

Order in Criminal Misc. Application:

1. The present Application has been preferred by the Applicant / Original Complainant - The State of Gujarat under Section 378(1)(3) of the Code of Criminal procedure, 1973 for grant of Leave to Appeal, challenging the judgment and order dated 16.2.2022 passed by the learned Special Judge (Atrocity) & 7th Additional Sessions Judge, Rajkot in Special (Atrocity) Case No. 19 of 2016, whereby the present Opponent / Original Accused No. 1 and 2 others have been acquitted of the charge for commission of offence punishable under Section 302 of Indian Penal Code.

2. Learned APP Ms. C.M.Shah appearing for the Appellant - State

R/CR.MA/22173/2022 ORDER DATED: 21/03/2023

submitted that the learned Additional Sessions Judge has acquitted the present Respondent No.1 / Original Accused of the charge for commission of offence punishable under Section 302 IPC merely on the ground that there is no injury caused to the deceased on the vital part of his body. The findings recorded by the learned Additional Sessions Judge is erroneous and contrary to the evidence adduced on record. She therefore submitted to allow the present Application and grant leave to appeal to the Applicant - State to file the Appeal challenging the said judgment and order.

3. The Application is opposed by learned Advocate Shri O.I.Pathan appearing for the Respondent No.1 / Original Accused. It is submitted that the learned Additional Sessions Judge has rightly recorded the finding that there is no injury caused on the vital part of the body of the deceased. He further submitted that as per the case of the prosecution only single blow has been inflicted upon the deceased which indicates that there was no intention on the part of the Respondent of causing death of the deceased. He therefore submitted that no ground is made out to entertain the present Application. He therefore submitted to dismiss this Application.

4. Heard learned APP Ms. C.M.Shah for the Applicant - State and learned Advocate Mr. O.I.Pathan for the Respondent / Original Accused.

5. As per the facts emerging from the record, the deceased had sustained a stab wound of 5 cmt. from the belly button and the size of the said wound is 2.5 cmt. x 0.8 cmt. The wound was deep up to the abdominal cavity and because of the said wound the intestine came out of the said wound. The learned Additional Sessions Judge has found the death of the deceased to be a homicidal death. After recording the said finding, the learned Additional Sessions Judge has gone on to find that there is no injury on the vital part of the body of the deceased.

R/CR.MA/22173/2022 ORDER DATED: 21/03/2023

6. Considering the aforesaid, the present Application deserves to be allowed and the same is hereby allowed.

Order in Criminal Appeal:-

1. Heard learned APP Ms. C.M.Shah for the Appellant - State and learned Advocate Mr. O.I.Pathan appearing for the Respondent - Original Accused.

2. Appeal is ADMITTED. Bailable warrant in the sum of Rs.10,000/- be issued against the Respondent - Original Accused.

3. It has been stated at the bar that the Respondent No.1 / Original Accused has already preferred Criminal Appeal No. 1573 of 2022 challenging the very judgment convicting him for the offence punishable under Section 304 Part-II of IPC.

4. Let the present Appeal also be heard along with Criminal Appeal No. 1573 of 2022.

(A.Y. KOGJE, J)

(M. R. MENGDEY,J) J.N.W / 11