SOMABHAI JIVABHAI KHIMSURIA Vs. STATE OF GUJARAT
LAWS(GJH)-2008-11-114
HIGH COURT OF GUJARAT
Decided on November 26,2008

SOMABHAI JIVABHAI KHIMSURIA Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

- (1.) THIS Criminal Revision Application is filed by the original complainant Somabhai Jivabhai Khimsuria against the judgment and order dated 27th April, 2000 delivered by the learned Special Judge, Amreli in Special Case No. 36/1999 wherein the present respondent No. 2 Chandubhai Bhikhabhai Gondalia being accused of said Special Case came to be acquitted by the trial Court for the offences punishable under Sections 352 and 504 of the Indian Penal Code as well as under section 3 (1) (10) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. The brief fact of the present case is that on 19th February, 1999 at about 10. 30 hours at Bagasara Town the incident occurred in the manner that the driver of the present applicant Danabhai Lakhabhai of Tractor bearing No. GJU 7442 had been to Patel Wadi" for staking metal at about 9. 00 a. m and, thereafter, complainant again visited Patel Wadi" at 10. 30 a. m and he found that one more Tractor of Chatur Natha Paghdal was being unloaded of sand and at that time accused was present there. The complainant Somabhai Jivabhai Khimsuria conveyed to the accused that the work of preparing road of Municipality was entrusted to him and why the accused was doing that work and had brought the tractor. Thereupon, accused Chandubhai Bhikhabhai excited and started giving abuses to the complainant and after taking a spade in his hand ran after the complainant to beat him and hence, the complainant escaped from that place. At that time, Naran Boricha, his tractor driver Danabhai Lakhabhai and one Balu Mana were present. The complaint was lodged by the complainant before Bagasara Police Station at about 12. 15 p. m on the same day. After Investigation was over, a charge-sheet came to be filed in the Special Court. The accused pleaded not guilty and, therefore, the prosecution examined as many as eight witnesses and produced documentary evidence on record. After recording further statement of the accused under Section 313 of the Criminal Procedure Code, the learned trial Judge heard both the parties and came to the above conclusion of acquittal of the accused and hence, this Criminal Revision Application filed by the original complainant, applicant herein.
(2.) LEARNED advocate Mr. P. J. Kanabar for the applicant and learned APP Mr. L. B. Dabhi for the respondent No. 1 State were heard in detail. While learned advocate Mr. M. B. Parikh for the respondent No. 2 is not present.
(3.) LEARNED advocate for the applicant submitted that the learned trial Judge has wrongly appreciated the evidence of both the eye witnesses i. e. P. W. 5 Danabhai Lakhabhai, Ex. 19 and P. W. 6 Naranbhai Mavjibhai Boria, Ex. 20. P. W. 6 Naranbhai Mavjibhai Boria, Ex. 20 is a witness who is named in the FIR and that is evident from the copy of the FIR. He has submitted that the learned trial Judge did not believe this witness because what he deposed in not stated in FIR. Likewise, it is the submission that Danabhai Lakhabhai has not been believed only because of his natural conduct that he could not attempt to save his employer, but person acts and behaves in different manner in different circumstances and these are not the reasons, discarding this evidence. According to the learned advocate for the applicant, these are the manifest error on the part of the learned Judge to appreciate the evidence and hence, the Criminal Revision Application is required to be allowed.;


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