SALIM NASRUDDIN SHAIKH v. SURESHKUMAR MAYARAM OZA & Ors.

CORAM : MR.JUSTICE D.P.BUCH Date of decision: 18/02/2002 ORAL JUDGEMENT #. This is a Revision Application under Section 397 read with Section 401 of the Criminal Procedure Code, challenging the judgment and acquittal order dated

13.10.2000 recorded by the learned 2nd Extra Assistant Sessions Judge, Palanpur in Session Case No.104/1994 under which the learned 2nd Extra Assistant Sessions Judge acquitted the present contesting respondent No.1 from the offences punishable under Sections 147, 148, 149, 435, 436, 454, 379 and 380 of the I.P.C. #. It was the allegation against the contesting respondent that on 2.10.1990 at about 21:40 hours a first information report was received wherein it was stated that at 5:30 p.m. on that day, the aforesaid incident took place under which a mob of so many persons had gathered together near a Fiat Car bearing No.GJ-08-601 lying outside the building in which the petitioner was carrying his dispensary at Palanpur in Banaskantha District. It was alleged that the said mob consisted of so many persons including 4 accused persons who were charge-sheeted before the trial Court. It was alleged that the accused were four in number and from them present respondent No.1 before this Court had kerosene in his hand and he poured kerosene on the said car and then set the car on fire and committed the aforesaid offence. #. The learned trial Judge acquitted all the accused persons after appreciation of evidence on record.

Feeling aggrieved by the said judgment and acquittal order, the petitioner - original complainant has preferred this Revision Application before this Court. #. The petitioner has contended that the appreciation of evidence is illegal and, therefore, this Court should interfere with the said judgment and acquittal order and should remand the matter back to the trial Court. #. I have heard Mr.K.B. Anandjiwala, learned advocate for the informant who is petitioner before this Court. I have also heard Mr.B.D.Desai, learned APP for the State who supports the judgment and opposes the arguments of Mr.Anandjivala. #. During the course of hearing Mr.K.B.Anandjivala has taken me through the evidence of the eye witnesses. It seems that there are three eye witnesses examined by the State in order to prove the offence against the present respondent. It is first to be seen that though four accused were charge-sheeted and though all the four accused have been acquitted, the petitioner has preferred this Revision Application against the original accused No.4 - Sureshkumar M. Oza only and not against other accused persons. #. Another aspect of the case is that the petitioner himself has given evidence before the trial Court and he has sought corroboration of his compounder - Lalmohammad Dasmohammad at Ex.31.

Then there is another witness who is a sweeper attached to the said dispensary. Therefore, the argument is that the original informant has been supported by the oral testimony of the said two eye witnesses and, therefore, there was a good case for conviction against the contesting respondent. #. On going through the evidence of these three witnesses it is clear that so far as the compounder is concerned, it is not clear as to how he could identify the contesting respondent as one of the persons present in the mob. An attempt was made to show that he used to stand near a temple and, therefore, he knew him. It is not much in dispute that the contesting respondent is a practicing lawyer of Palanpur and ordinarily he would not have any reason to stand by a temple so as to be identified by the compounder. No other reasons have been explained as to why the compounder could identify the contesting respondent.

Similarl is the question about the identity of this respondent by the sweeper. Looking to the evidence of these two witnesses, it is doubtful as to whether contesting respondent was really present in the mob and had actually poured kerosene on the car of the petitioner and had actually set the said car on fire. #. When the three witnesses have been cited as eye witnesses and the evidence of two of them is found to be doubtful, it would be unsafe to rely upon the sole testimony of the original informant. ##. The trial Court has considered and has appreciated evidence of all the witnesses and after appreciation of the evidence, the trial Court has found that the evidence is not worth relied upon. There is no illegality shown to have been committed by the trial Court in arriving at the aforesaid finding of fact. This being a Revision Application and when the State has not preferred acquittal appeal, it would be very difficult for this Court to reappreciate the evidence and finding of fact recorded by the trial Court. ##. In that view of the matter, it would not be open to this Court to interfere with the said acquittal recorded by the trial Court.

The trial Court had an opportunity to witness the witnesses tendering the evidence from the witness box and after the appreciation of this evidence when the acquittal has been recorded, such an acquittal cannot be lightly brushed aside. The trial Court has also observed that it is difficult to accept that the three witnesses were present at the place where the witnesses were shown to be present in their oral testimony. Even this finding of fact also cannot be challenged as it is not against the weight of evidence on record and, therefore, even this finding of fact has to be accepted and once it is accepted then there is no scope for holding the contesting respondent guilty for the aforesaid offence. ##. For the foregoing reasons, I do not find any merits in the present Revision Application and consequently it is ordered to be dismissed. (cid:9) (cid:9) ( D. P. BUCH, J.) (cid:9) (cid:9)