The appellant has preferred this appeal under section 378 of the Code of Criminal Procedure and challenged the judgment and order of acquittal passed by the learned Metropolitan Magistrate, Ahmedabad on 31.12.2004 in Criminal Case No.285 of 2003 acquitting the respondents accused for the offence under section 323, 294(B) and 194 of the IPC and section 135 of the Bombay Police Act. 2. According to the prosecution case, Vinodbhai, son of Ishwarbhai Parmar lodged a complaint before Shahpur Police Station, Ahmedabad on 28.10.2002 alleging that on 27.10.2002 at about 3:30 in the noon, when repairing work of public toilet was going on, the workers enquired about construction of wall from his daughter Anita. Hence, accused No.3 Dakshaben Devendrabhai got instigated and accused No.1 Devendrabhai – husband of accused No.3 caught hair of Anita and pushed her down. As, he came out of the house, accused No.1 Devendrabhai caused injury on his face by iron ring and accused No.2 Ashokbhai caught hold of him and gave abuses. Residents of the chawl intervened and he was rescued. As he wanted to lodge complaint before the police, residents of chawl Laxmanbhai Kalidas, Vasantbhai Ganpatbhai and Rajanibhai Revabhai persuaded him not to file complaint. Therefore, he did not file the complaint immediately. However, on the next day, he lodged a complaint as he had pain on his face.
3. On the basis of the complaint filed by the victim Vinodbhai, offence was registered and investigation was started. During the course of investigation, statement of the witnesses were recorded. Medical certificate with regard to injury of the victim was obtained. On conclusion of investigation, charge sheet came to be filed against the accused for the offence punishable under sections 323, 294-B and 114 of the Indian Penal Code and under section 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973, stated that he is innocent and false case is filed against him. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the Court acquitted the accused. Being aggrieved by the said decision, State has preferred this appeal.
4. I have heard learned APP Ms. Shah for the appellant and learned advocate Mr. Acharya for the respondent at length and in great detail. I have also perused the impugned judgment and record and proceedings of the trial Court.
5. Learned APP Ms. Shah submitted that eye witnesses to the incident have supported the prosecution case and medical evidence also indicates that the accused were responsible for the injury caused to the victim. She also submitted that accused No.1 caused injuries to the victim and accused No.2 caught hold of the victim. Therefore, participation of both the accused is proved by the prosecution. She also submitted that the omissions and contradictions are of minor nature and the trial Court committed error in giving undue importance to such omissions and contradictions. Therefore, the impugned judgment is required to be set aside.
6. Learned advocate Mr. Acharya for the respondent submitted that though the incident occurred in chawl, statement of the eye witnesses were not recorded and only family members of the victim have been examined by the prosecution. He also submitted that there is undue delay in lodging the complaint and the prosecution has not explained the delay. He also submitted that the medical evidence does not clearly support the prosecution case and therefore, the trial Court was justified in acquitting the accused and no interference is warranted in the impugned judgment.
7. It appears from the prosecution case that the alleged incident occurred on 27.10.2002 at about 15:30 hrs. while construction work of toilet was going on in the chawl and the complaint was filed on 28.10.2002. The prosecution has examined the complainant PW 1 Vinodkumar Parmar at Exh-4. The witness has in the cross examination admitted that there are 16 rooms in the chawl and that his elder son Jayeshbhai is a doctor working in VS Hospital and other son Umesh is also a doctor. The witness has also admitted that at the time of incident, work of toilet was in progress. The witness has denied that his daughter was caught and dragged and denied that accused No.1 Devendrabhai dragged his daughter Anita holding her hair. The witness has also deposed that at the time of incident, residents of chawl had assembled.
8. The prosecution has produced the complaint at Exh-5. It is alleged in the complaint that accused No.1 Devendrabhai pushed his daughter Anita holding her hair and accused No.2 Ashokbhai caught hold of the complainant and gave abuses. The complaint was filed at VS Hospital.
9. In view of above evidence, it emerges that the complaint was filed on the next day of incident. The witness has not offered any explanation with regard to delay. In view of this evidence, as there is no satisfactory explanation with regard to delay in lodging the complaint, in my view, serious doubt is raised with regard to involvement of the accused in the offence.
10. The prosecution has also examined witness Anitaben at Exh-6. The witness has, in the cross examination, denied that at the time of incident, the residents of the chawl were sleeping in their respective houses. She has admitted that while accused No.1 Devendrabhai caught hold of her hair, her father was in the Osary and has also admitted that she has close Osary.
11. However, the investigating agency did not record statement of any independent witnesses. The witness is the daughter of the complainant and therefore, naturally, she would try to support the complainant. Therefore, in absence of independent evidence, it would not be safe to rely upon her evidence to connect the accused with the offence.
11. The prosecution has also examined witness Dahiben at Exh-7. However, evidence of this witness is not consistent with the prosecution case.
12. The prosecution also examined Dr.Shirishbhai at Exh-8 to prove injuries to the complainant. The witness did not produce medical certificate to prove the injury. Therefore, there is no evidence to prove that the complainant had sustained injuries in the incident.
13. In view of above evidence, as there is undue delay in lodging the complaint and there is no medical evidence that the complainant sustained injuries in the incident, the trial Court was justified in acquitting the accused. Learned APP has not been able to point out any infirmity in the impugned judgment.
14. In the result, the appeal fails and stands dismissed.
(BANKIM.N.MEHTA, J.) shekhar*