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2015 DIGILAW 936 (GUJ)

State of Gujarat v. Sureshbahi Ishwarbhai Solanki

2015-09-23

RAJESH H.SHUKLA

body2015
JUDGMENT Rajesh H. Shukla, J. 1. The present appeal is directed against the judgment and order rendered in Special Case (Atrocity) No. 40/1998 by the Special Judge, FTC, Bharuch dated 15th April, 2005 recording acquittal of the respondents-accused persons from the alleged offences under the Indian Penal Code as well as under the Atrocity Act giving benefit of doubt. 2. Heard learned APP Shri H.L. Jani for the appellant-State, learned advocate, Ms. Acharya appearing with prosecution for the original complainant as per the order passed by the Division Bench of this High Court in Criminal Revision Application No. 361/2005 dated 04.12.2007 and learned advocate, Shri Kartidev Dave for the respondents-accused. 3. The fact of the case briefly summarized are as follows:-- 3.1. As it transpires from the record, the complainant was working as Post Master in the police office at Uchchhad and it was a branch run in the house itself. On 06.10.1995 at about 13:15 hours, the accused persons are said to have visited the post office housed in the house of the complainant and, therefore, the complainant is said to have stated that working hours are over and still if the respondent-original accused No. 1 agrees then, cover may be handed over with endorsement of the next date. Thereupon, the A1 is said to have abused the complainant with filthy wordings regarding the caste and insisted that he would not accept with the endorsement of the next date of tomorrow and torn the register and record and also 27 covers lying there. Further it is the case of the prosecution that A1 had taken out his waist-belt and was also armed with the pipe and A1 slapped the complainant and said to have taken away amount of Rs. 6,753/- and thereby committed offences of loot/robbery, for which, complaint was given by the complainant before Vadech Police Station being I-C.R. No. 79/1995 for the offence under Sections 332, 392, 504(D), 506(2), 427 and 114 of the Indian Penal Code and under Sections 3, 9 and 10 of the Atrocity Act. 3.2. After the investigation was over, the chargesheet was filed and as the offences are triable by the Court of Sessions, it was committed to the Court of Sessions. 3.3. Thereafter, the charge was framed and the Sessions Judge was proceeded with the Trial. 3.4. 3.2. After the investigation was over, the chargesheet was filed and as the offences are triable by the Court of Sessions, it was committed to the Court of Sessions. 3.3. Thereafter, the charge was framed and the Sessions Judge was proceeded with the Trial. 3.4. In order to bring home the charge leveled against the accused persons, the prosecution examined witnesses including the victim-complainant and other eyewitnesses and also documentary evidence was produced as mentioned in the impugned judgment and order. 3.5. After recording of the evidence of the prosecution witnesses was over, the Sessions Judge recorded further statements of the accused persons under Section 323 of the Code of Criminal Procedure, 1973. 3.6. After hearing learned advocate for the defence as well as learned APP, the impugned judgment and order was passed, which has led to this appeal on the grounds inter alia that the Court below has failed to appreciate the material and evidence with regard to the manner of the incident and also the fact that the eyewitnesses have fully corroborated the complaint and the testimony of the complainant with regard to the incident. 4. Learned APP Shri Jani referred to the testimony of the complainant, Exh. 10 and submitted that he has narrated about the incident. He submitted that the complainant was working as a Postmaster in the post office branch housed in his own house and was assaulted merely because he said that time is over. He submitted that in fact, the complainant has also admittedly stated that he may hand over cover with the an endorsement regarding next date of tomorrow, therefore, there was no reason for the accused persons, particularly, A1 to get angry and in fact, the A1 started abusing with filthy words regarding the caste and also stated that he would not accept the letter/cover with an endorsement regarding next date. Learned APP Shri Jani submitted that further he had taken out his belt and was armed with pipe and, thereafter, slapped the complainant, who is a public servant discharging public duty. Learned APP Shri Jani also submitted that as stated by this witness supporting his own complaint at Exh. Learned APP Shri Jani submitted that further he had taken out his belt and was armed with pipe and, thereafter, slapped the complainant, who is a public servant discharging public duty. Learned APP Shri Jani also submitted that as stated by this witness supporting his own complaint at Exh. 11 that even the record of the post office with some covers were also torn and, therefore, it may be considered that A1, who is a Sarpanch, has behaved in the manner which is more serious than he could behave with the public servant in such manner. Learned APP Shri Jani submitted that testimony of the complainant, PW-1 is corroborated by the eyewitnesses, who are examined as PW-2 and PW-3 at Exhs. 13 & 14 and they have also corroborated the testimony of the complainant with regard to the manner of the incident and assault. He submitted that similarly other two witnesses, wife of the complainant and sister-in-law of the complainant were also examined as PW-4 and PW-5 at Exhs. 15 and 16, who have also corroborated the incident, which establishes the presence of the accused persons and the incident and the manner in which it occurred. Learned APP Shri Jani therefore submitted that once the incident has been established with the presence of the accused, the judgment recording acquittal may not be sustained. Learned APP Shri Jani further referred to the papers including the panchnama regarding the recovery of the discovery of the weapons and record and submitted that though panchas may have turned hostile, the recovery has been made, which is proved by the testimony of the Investigating Officer. He therefore submitted that merely because the panch witnesses have turned hostile, it would not brush aside the entire evidence of the prosecution. He also referred to the testimony of Dr. Baldev Darji, PW-7, Exh. 19, who has clearly stated that he has also confirmed while recording history that the complainant has stated that he was assaulted by the A1. He also referred to the testimony of Investigating Officer, PW-13, Exh. 33. He also referred to the testimony of Dr. Baldev Darji, PW-7, Exh. 19, who has clearly stated that he has also confirmed while recording history that the complainant has stated that he was assaulted by the A1. He also referred to the testimony of Investigating Officer, PW-13, Exh. 33. Therefore learned APP Shri Jani submitted that taking this evidence couple with the fact that background and the conduct of the accused, which have also been referred to in the testimony of the witnesses with regard to the compromise, clearly suggests that he is in habit of abusing in such manner and, therefore, A1 and other accused have also accompanied him, they would also be liable for the offences as they are read with Section 114 of the IP Code. 5. Learned advocate, Ms. Acharya submitted that she would adopt the submissions made by learned APP Shri Jani and would supplement only with regard to the evidence regarding the conduct of the A1. For that, she referred to the testimony of the witnesses and also other cases being Criminal Case No. 1525/1996 before thee court of the Judicial Magistrate, First Class, Jambusar and pointedly referred to Chapter Case No. 525/1995. She referred to the judgment given in Criminal Case No. 1525/1996 and submitted that the complainant, who was the accused in that case, has been acquitted. She submitted that the A1 is in habit of abusing in such a manner, for which, there are other cases like FIR being C.R. No. 19/1998 registered under the IP Code regarding the irregularities committed as Sarpanch. She also referred to C.R. No. II-13/1998 registered with Vadej Police Station for the offence under IP Code regarding reckless and intentional driving of tempo to cause intentional accident with the complainant therein and other such incident like C.R. No. 15/2000 at Vadej Police Station. She has also referred to page Nos. 185 and 186. She therefore submitted that the present appeal may be allowed and acquittal may not be sustained. 6. Learned advocate, Shri Dave referred to the papers and submitted that as the A1 is the Sarpanch, due to political rivalry by one Ramsang, who was also Sarpanch, complaint has been lodged to cause harassment. He also referred to the background and the testimony of the complainant, PW-1, Exh. 10 and emphasized the cross-examination that the Police has not recovered 27 torn covers. He also referred to the background and the testimony of the complainant, PW-1, Exh. 10 and emphasized the cross-examination that the Police has not recovered 27 torn covers. Further, he submitted that other witnesses are relatives and, therefore, their evidence may not be accepted at the face value. He also referred to other evidence and submitted that panchnama is not established as the panchas have turned hostile. He also tried to submit that as per the record, compromise was sought to be made, for which, amount which has been stated to have been stated, is the same amount, which was recovered at the instance of the A1. He also submitted that it was only to see that extension of the police custody is avoided, it was deposited and shown to the police. However, he submitted that background may also be considered with regard to the complaint where same complainant is the accused. 7. Learned advocate, Shri Dave referred to the provisions of the Atrocity Act and also the judgment of this Court in case of Omprakash Bhanvarlal Jain v. State of Gujarat, reported in 2010 Law Suit (Guj) 178 and submitted that as observed in that judgment, the investigation was not conducted by the competent officer as provided under Rule 7 and the offences were not established regarding criminal intimidation. He submitted that in the facts of the case also, the investigation is made by the PI and not by the higher officer as required under the Atrocity Act. Further, he submitted that the branch of post office was housed in the residence of the complainant and, therefore, it was not a public place. He also submitted that ingredients for such offence cannot be said to have been established like Sections 392, 504(D), 506(2) etc. of the IP Code. He therefore submitted that considering the scope of acquittal appeals, the present appeal may not be entertained and acquittal of the accused which has been recorded, may not be disturbed. 8. Alternatively, he submitted that even if the Court records about the conclusion qua for the offence under Section 332 of the Indian Penal Code are not convincing then, it may be confined to A1 only as he is said to have slapped the complainant. He emphasized that it was not pre-determined that others had accompanied the A1 to abet the offence with same intention and knowledge. He emphasized that it was not pre-determined that others had accompanied the A1 to abet the offence with same intention and knowledge. He submitted that as it was all of sudden the offence can be said to have been committed by the A1, for which, others may not remain liable and, therefore, acquittal qua the respondents-accused Nos. 2 to 4 may be maintained. 9. Further, learned advocate, Shri Dave also submitted that much time has lapsed and considering the background of the facts even while recording the conviction for the offence under Section 332 of the IP Code qua A1, he may be granted benefit under the Probation of Offenders Act. 10. In rejoinder, learned APP Shri Jani as well as learned advocate, Ms. Acharya resisted that looking to the background of the facts, where the assault is made upon the public servant discharging his public duty and considering past conduct, the benefit under the Probation of Offenders Act may not be extended. Learned APP Shri Jani submitted that as all the accused were present, they would be liable for the same offence read with Section114 of the IP Code. 11. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 12. As could be seen from the impugned judgment and order recording reasons for the acquittal on appreciation of material and evidence, the Court has consider in background of the well settled guidelines with regard to the acquittal appeals. As could be seen from the reasons recorded for the findings and conclusion arrived at, the Court below has not dealt with the offence under Section 332 of the IP Code inasmuch as the presence of the accused persons and the incident are not in dispute. Therefore, the finding that the prosecution has failed to establish that on 06.10.1995, the A1 had slapped the complainant, who was public servant discharging public duty, cannot be readily believed or accepted. The findings, which have been recorded that the testimony of other eyewitnesses is not reliable and it is not corroborated, cannot be accepted. Therefore, the finding that the prosecution has failed to establish that on 06.10.1995, the A1 had slapped the complainant, who was public servant discharging public duty, cannot be readily believed or accepted. The findings, which have been recorded that the testimony of other eyewitnesses is not reliable and it is not corroborated, cannot be accepted. There are no discrepancy or contradiction as eyewitnesses, who have been examined, are consistent with regard to the presence of the accused persons, incident and the manner in which the incident has occurred inasmuch as they have said that A1 had given slap to the complainant and there was damage to the papers/records of the post office. Therefore this finding which has been recorded, does not confirm with the record and the testimony of the witnesses. It is well accepted that while appreciating the evidence, it has to be considered as a whole and there might be difference or minor discrepancy in narration but it does not change the entire substratum of the testimony of the witnesses on the relevant issues. Therefore when the witnesses have corroborated each other on the major relevant issues like the presence of the accused, the incident and manner of the incident, it cannot be brushed aside. Therefore the findings recorded by the Court below brushing aside the testimony of the eyewitnesses cannot be believed. 13. At the same time, the findings with regard to the offence under the Atrocity Act does not call for much elaboration as the investigation has not been made by the office as required under the special statute like Atrocity Act and it was made by PI. Further the incident cannot be said to have taken place in public place and, therefore, in view of the judgment of this Court in case of Omprakash Bhanvarlal Jain (supra) referring to very issue with regard to the compliance with Rule 7 and Section 506 of the IP Code, the acquittal for the offences under Sections 506(2), 504, 427 and 392 of the IP Code are not disturbed. 14. Though the offence under Section 392 of the IP Code may not have established as necessary ingredients may not have been fulfilled, the fact remains that incident had taken place resulting in the damage to the record of the post office couple with the fact that some amount was also taken away from the complainant. 14. Though the offence under Section 392 of the IP Code may not have established as necessary ingredients may not have been fulfilled, the fact remains that incident had taken place resulting in the damage to the record of the post office couple with the fact that some amount was also taken away from the complainant. However, it was in the altercation and, therefore, the finding is not required to be disturbed. 15. At the same time, the moot question which is required to be considered is whether the offence under Section332 can be said to have been established and whether the findings recorded for the Court below could be sustained. As stated above, the presence of the accused persons and the occurrence of the incident is not disputed inasmuch even subsequent compromise which may not have been brought on record but the reference is made on the testimony of the witnesses clearly suggest about the fact that there was some complaint made to District Development Officer qua A1, who is Sarpanch, which may have lead to some compromise, which was arrived at. Therefore as stated in the testimony of the complainant, PW-1 himself referring to this aspect which has been corroborated by the testimony of PW-6, Exh. 17. Therefore merely because there may have some understanding which was not brought on record, would not make any difference so far as the offence is concerned. The medical evidence in the form of the testimony of PW-7, Dr. Baldev Darji confirms and support the complaint of the complainant/victim that he was slapped by the A1. Therefore, the complaint is corroborated by the complainant with his testimony and the medical evidence. Thus the complainant in the injured victim, who has clearly stated about the assault corroborated by the eyewitnesses and the medical evidence, which leaves no doubt about the offence under Section 332 of the IP Code by A1. However as the assault is made by the A1 only, whether the accused Nos. 2 to 4 also can be held liable as alleged offence is read with Section 114 of the IP Code, is required to be considered. However as the assault is made by the A1 only, whether the accused Nos. 2 to 4 also can be held liable as alleged offence is read with Section 114 of the IP Code, is required to be considered. As rightly submitted by learned advocate, Shri Dave, other accused had merely accompanied the A1, who was Sarpanch and there is nothing to suggest that there was any intention or pre-decided intention for the offence as it had occurred in spur of moment when the A1 assaulted the complainant. Therefore, it would not be proper to disturb and reverse the findings regarding the acquittal of the respondents-accused Nos. 2 to 4. While appreciating this aspect, the Court has to consider the fact that assault is made on the public servant discharging public duty and on appreciation of evidence, when it has been clearly established, the finding recorded acquittal cannot be sustained. The Hon'ble Apex Court while laying down broad guidelines with regard to the approach in acquittal appeals in a judgment in case of Chandrappa & Ors. v. State of Karnataka, reported in (2007) 4 SCC 415 has also observed expressing word of caution that the Court should be conscious while disturbing the order of acquittal and it could be only for substantial and compelling reasons. Thus there is no absolute bar or rather it has been duty on the higher court to scrutinize the evidence in a given case. The Hon'ble Apex court has quoted in this judgment earlier judgment of the Hon'ble Apex Court in case of Shivaji Sahabrao Bobade v. State of Maharashtra, reported in (1973) 2 SCC 793 and it is quoted, "In law there are no fetters on the plenary power of the appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinize the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive considerations." 16. Therefore, judicial institution has also a public duty of maintaining balance between the right of accused and the society. Therefore, judicial institution has also a public duty of maintaining balance between the right of accused and the society. Therefore referring to the observation and quoted by Justice Krishna Iyer in the same judgment referring to the observation made in Shivaji Sahabrao Bobade (supra) has quoted, "In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents". 17. Therefore considering the aforesaid broad guidelines and subsequent judgment also, the present appeal deserves to be allowed partly and the impugned judgment and order qua A1 deserves cannot be sustained qua Section 332 of the IP Code. 18. Learned Advocate Shri Kirtidev Dave has also requested that while maintaining the conviction, the benefit under the Probation of Offenders Act may be given to the respondent-accused No. 1. However, learned APP Shri H.L. Jani has placed on record the communication dated 14.9.2015 reflecting about the antecedents which would disentitle the Respondent for claiming any such benefit under the Probation of Offenders Act. Further, the benefit under the probation could be given in a given case considering the aspect of the rehabilitation and the penology. The doctrine of penology which has reference to the doctrine of proportionality and sentence is also required to be considered. 19. A useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment in case of Siriya alias Shri Lal v. State of M.P., reported in AIR 2008 SC 2314 , wherein it has been observed that the Court has to consider social impact and too lenient view is counter productive. It has also been observed, "Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu [ 1991 (3) SCC 471 ]" 20. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu [ 1991 (3) SCC 471 ]" 20. Thus, the Hon'ble Apex Court has also made the observations time and again that while considering the individual liberty or the interest, the public interest of the society in general has to be considered and too much leniency shown while awarding the sentence would be a counter productive and it may send a wrong message. Though the learned Advocate Shri Dave has referred to and relied upon the two judgments reported in 2007 (1) GLH 169 in case of Thakor Viraji Jesangji v. State of Gujarat with regard to the facts of the case does not reflect any antecedent. Similarly, though he has referred to the another judgment of the Hon'ble Division Bench (to which this Bench was also a party), in Criminal Appeal No. 504 and 505 of 1987 in case of State of Gujarat v. Pathubha Harishinh Jadeja, the facts are totally different with regard to the benefit under the probation given to some of the accused considering the role. Therefore, it could not be of any help to the present Respondent. 21. Therefore, in view of the aforesaid broad discussion with regard to the guidelines and the subsequent judgments, the present appeal deserves to be allowed partly maintaining acquittal for the offences under Sections392, 504(D), 506(2), 427 and 114 of the IP Code and under Sections 3, 9 and 10 of the Atrocity Act and recording conviction for the offence under Section 332 of the IP Code. 22. In the circumstances, the present appeal stands allowed partly. The impugned judgment and order of the Court below recording acquittal for respondents-accused Nos. 2 to 4 for all offences and for the respondent-accused No. 1 for the offence under Sections 392, 504(D), 506(2), 427 and 114 of the IP Code and under Sections 3, 9 and 10of the Atrocity Act is hereby confirmed and said judgment and order recording the acquittal for the offence under Section 332 of the IP Code cannot be sustained. Hence, the respondent-accused No. 1 - Sureshbhai Ishwarbhai Solanki is convicted for the offence under Section 332 of the IP Code and sentenced to undergo simple imprisonment for 2 years. The respondent-accused No. 1 is ordered to be surrendered before the jail authority within four weeks from today. Learned Advocate Shri Kirtidev Dave shall intimate to the Respondent No. 1. 23. The amount of Rs. 6763/- (Rupees Six thousand seven hundred sixty three only) lying as a muddamal is ordered to be given to the original complainant on usual terms after the appeal period is over. 24. R&P is ordered to be returned back.