Gujarat High Court
Daljitbhai Martaji Damor vs State Of Gujarat on 9 May, 2025
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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-
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Approved for Reporting Yes No
✔
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DALJITBHAI MARTAJI DAMOR
Versus
STATE OF GUJARAT & ORS.
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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
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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,
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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
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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
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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
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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
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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.
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[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
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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
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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
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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
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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
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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
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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.
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[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
