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Gujarat High Court · body

2016 DIGILAW 1192 (GUJ)

State of Gujarat v. Mafatbhai Gabhabhai Rabari

2016-06-28

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. The appellant State of Gujarat has preferred the present appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 31.5.2005 rendered by learned Presiding Officer, Fast Track Court No. 7, Gandhinagar in Special Atrocity Case No. 10 of 2005. 2. The short facts giving rise to the present appeal are that in the sim of Dhanij village of Dehgam Taluka near nava dharo, the complainant and her two sisters were going for collecting wood, accused No. 1 abused concerning the caste, caught hold of the wrist of the complainant, dragged and assaulted her. It is alleged that accused Nos. 2 and 3 also abused and caused injuries by biting. Therefore, the complaint came to be registered by the complainant on 7.12.2004 about the incident which was occurred on 2.12.2004. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined 10 witnesses. 3.2 At the end of the trial, after recording the statements of the accused under section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 5.1 Mr. L.R. Pujari, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. 5.1 Mr. L.R. Pujari, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that though there is ample evidence on record, learned trial Court did not believe the depositions of the witnesses and wrongfully acquitted the accused as such. In his submission, therefore, learned trial Court ought to have convicted the accused and hence, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondents are required to be convicted, as such. 6. On the other-hand, Mr. Tejas Barot, learned Advocate for the respondents accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Barot further submitted that there is no iota of evidence to link the accused with the crime. He submitted that though the alleged incident has taken place on 2.12.2004 at noon, but the complaint was lodged on 7.12.2004. He submitted that entire case of the prosecution appears to be counter blast to the chapter case launched by respondent No. 1 against the complainant as well as eye witnesses as they have trespassed upon the forest area and were collecting wood. In his submission, therefore, in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Mr. L.R. Pujari, learned APP for the appellant State and Mr. Tejas Barot, learned advocate for the respondents accused. 8. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, on 2.12.2004 at about 12.00 noon while the complainant and her two sisters were collecting wood nearby Amba Hotel, at that time, respondent No. 1 came there and talked with the complainant in abusive language and used the words derogatory to the caste of the complainant as she belongs to the scheduled tribes. As per the prosecution version, on 2.12.2004 at about 12.00 noon while the complainant and her two sisters were collecting wood nearby Amba Hotel, at that time, respondent No. 1 came there and talked with the complainant in abusive language and used the words derogatory to the caste of the complainant as she belongs to the scheduled tribes. It is also the case of the prosecution that respondent No. 1 caught hold the complainant and inflicted injury over chest as well as backside of the complainant and other accused have also inflicted injury over witness Shilpa and Champa and thereby the accused committed the offences punishable under sections 323, 504, 354 and 506 of IPC as well as under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 8.1 In order to bring home the guilt against the accused, the prosecution has examined 10 witnesses. P.W. 3 has deposed that she is having seven sisters and seven brothers, her two sisters are unmarried and she is also unmarried and they are doing piecemeal labour work. The witness stated that on the day of incident, when they were collecting wood, respondent Mafatbhai abused her and thereafter when the said accused caught hold her hand and dragged, at that time, accused Nos. 2 and 3 also came there and they have also assaulted Shilpa and Champa. The witness stated that thereafter she went to her home and informed her mother and her mother directed to lodge the complaint, but she could not do it as the complainant was prevented by the respondents. In her cross examination, contradictions and improvements were brought on record and the fact that she made such complaint invoking the provisions of the Atrocity Act against the Sarpanch, Talati-cum-Matri of the said village as well as other farmers and ONGC official. 8.2 Shilpaben Gandabhai and Champaben Gandabhai have been examined as P.W. 4 and P.W. 5 and they have also reiterated the same story as has been narrated by P.W. 3 - complainant. 8.3 Dr. Sandhyaben Dalpatsinh has been examined as P.W. 9. She has deposed that on 7.12.2004 while she was on duty, she examined Shilpaben, Champaben and Kailashben. Upon their examination, the witness issued the medical certificates which have been produced at Exhs. 26 to 28. 8.3 Dr. Sandhyaben Dalpatsinh has been examined as P.W. 9. She has deposed that on 7.12.2004 while she was on duty, she examined Shilpaben, Champaben and Kailashben. Upon their examination, the witness issued the medical certificates which have been produced at Exhs. 26 to 28. In her cross examination, the witness has admitted that injury found on the persons of the aforesaid three ladies were fresh, i.e. age of injury was 3 to 4 hours old. Even the certificate at Exh. 26 mentions "on 7.12.2004 at 12.00 noon". 8.4 On overall analysis of the evidence on record, indisputably, respondent No. 1 was serving as Guard in the Forest Department, State of Gujarat and while performing his duty to prevent cutting of wood as well as taking away wood from the forest area, the incident in question took place. It has also come on record that as the complainant as well as her sisters were found taking the wood from the forest area, at that time, while preventing them, there was quarrel and at that time, even respondent No. 1 was assaulted by the complainant and her sisters for which the complaint was also lodged before the concerned police station and in order to take preventive action, the police lodged the chapter case. Pursuant thereto, the complainant as well as her sisters were taken before the Executive Magistrate and after enlarging on bail, the complainant has lodged the present complaint after about five days from the date of alleged incident. However, during the course of oral deposition, the witnesses have deposed as if the incident has occurred on 7.12.2004 and the injury alleged to have been inflicted on 7.12.2004, but in the complaint, the complainant herself has clearly and categorically made assertion that the incident has taken place on 2.12.2004. In this view of the matter, oral evidence given by the complainant as well as two witnesses is not getting corroboration from the medical evidence as the medical evidence is indicative that the age of injury is 3 to 4 hours old prior to examination of the witnesses. Even otherwise also, there was cross complaint as regards to keeping peace and the Executive Magistrate has lodged the chapter case against both the parties. Even otherwise also, there was cross complaint as regards to keeping peace and the Executive Magistrate has lodged the chapter case against both the parties. 8.5 In view of the aforesaid nature of evidence, this Court is of the considered opinion that learned trial Court has rightly not believed the case of the prosecution and rightly given the benefit of doubt which does not call for any interference by this Court. 9. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 10. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 11. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.