The present appeal, filed under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 30th April, 2011 passed by the learned Metropolitan Magistrate, Court No.10, Ahmedabad in Criminal Case No.186 of 2006, whereby the learned Magistrate was pleased to acquit the respondent No.1-accused from the charges levelled against him.
The case of the prosecution is that the appellant and respondent No.1 is cousin and they are neighbour. There is dispute between then regarding property at Survey No.1303 in Dariyapur Ward No.1, Ahmedabad. Therefore, the appellant has preferred Civil Suit before the City Civil Court, Ahmedabad, which is pending. It is the case of the prosecution that keeping grudge against the appellant, respondent No.1 threatening the appellant to withdraw the said Civil Suit. As per the case of the prosecution on 16th June, 2005 when the appellant was going to offer prayer at 19.30 hours in Dadamiya Masjid, respondent No.1 threatened and abused the appellant. Even when the appellant returning back from the Masjid after offering hight prayer from Limdi Chowk Masjid, respondent No.1 again threatened and abused the appellant. When the appellant requested respondent No.1 to leave his way allowed him to go, respondent No.1 slapped the appellant on both the chick. Because of this, the appellant fell down and became unconscious. Therefore, the appellant went to Dariyapur Police Station and lodge complaint to the said effect. Thereafter, the appellant went to Civil Hospital and taken treatment. It is also the case of the prosecution that after registering the offence under Section 151 of the Code of Criminal Procedure, released the respondent No.1. Thereafter, again respondent No.1 meet the appellant and threatened him and told that "take back all the cases otherwise I will kill you." In the circumstances, on 13th July, 2005 the appellant lodge the complaint before the learned Magistrate.
Thereafter, the learned Magistrate has examined two witnesses and also framed charges under Sections 323, 294(B) and 506(2) of the Indian Penal Code. The appellant examined himself. After hearing the arguments of learned counsel for the respective parties, the learned Magistrate has acquitted respondent No.1 by giving benefit of doubt from the charges levelled against him by his order dated 30th April, 2011.
Being aggrieved and dissatisfied with the said Judgment and order dated 30th April, 2011 passed by the learned Metropolitan Magistrate, Court No.10, Ahmedabad, in Criminal Case No.186 of 2006, the appellant-original complainant has preferred the present appeal.
Heard Mr.Makbul I. Mansuri, learned counsel for the appellant and Mr.H.L. Jani, learned Additional Public Prosecutor, appearing on behalf of the respondent No.2-State.
Mr.Mansuri has contended that the present appellant was beaten by respondent No.1-accused and therefore, he fell down and received injuries. It is also contended by Mr.Mansuri that because of injuries received by the appellant, he has taken treatment in Civil Hospital and also produced medical evidence on record before the learned Magistrate, but the learned Magistrate has failed to consider the said evidence. Mr.Mansuri has read oral evidence of two witnesses, who are independent witnesses, and contended that from the oral evidence of these two witnesses prosecution has proved its case beyond reasonable doubt. He has also contended that the evidence of both the independent witnesses is in corroboration of the evidence of the appellant. He has also contended that the judgment of the learned Magistrate is not as per the charge. He, therefore, contended that the learned Magistrate has wrongly acquitted respondent No.1-accused.
Heard Mr.H.L. Jani, learned Additional Public Prosecutor for respondent No.2-State and also perused the papers produced before me. It appears from the papers that there is a civil dispute between the appellant and respondent No.1-accused, which is pending before the City Civil Court, Ahmedabad. As per the case of the appellant, he was beaten by respondent No.1-accused while he was returning back from Masjid and because of that, he has received injuries. It appears from the papers that therefore, respondent No.1-accused was arrested by the Police for the offence under Section 151 of the Code of Criminal Procedure and thereafter he was released on bail. It transpires from the papers that the independent witnesses have not supported the case of the prosecution. None of them have uttered a single word regarding injuries received by the appellant. Even the appellant has not produced any evidence on record to support his injuries. The prosecution has failed to produce on record medical evidence to prove its case. In absence of production of medical evidence, case of the prosecution of injury cannot be believed. The learned Magistrate has rightly considered the evidence produced before him.
In above view of the matter, I am of the opinion that the learned Magistrate has rightly acquitted respondent No.1-accused from the charges levelled against him. I am fully in agreement with the reasons assigned by the learned Magistrate while acquitting respondent No.1-accused. I have not found any substance in the present appeal. Hence, appeal deserves to be dismissed and is, therefore, hereby dismissed.
(Z.
K. Saiyed, J) Anup Top