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Gujarat High Court · body

2016 DIGILAW 1242 (GUJ)

Dattubhai @ Kiritbhai Patel v. State of Gujarat

2016-07-04

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. The present appeal has been filed by the appellants-original accused being aggrieved and dissatisfied with the judgment and order dated 17.7.2001 passed by the learned Additional Sessions Judge and Special Judge, Bharuch, in Sessions Case No.43 of 2000 whereby they were convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 500/- each, in default, to suffer further simple imprisonment for one month for the offence punishable under section 332 read with section 114 of the Indian Penal Code (‘IPC' for short). 2. Short facts of the case of the prosecution are that a complaint was filed by the complainant-Shantilal S. Vasava stating inter alia that he was serving as a conductor in S.T. Depot and on 17.10.1997 in the evening, he departed his S.T.bus No.GJ-1-Z-4794 with passengers and got down the passengers at Ankleshwar Depot and on the next day at 6.45 a.m., he boarded the passengers in the bus and started towards Rajpipla. At that time, at about 7.45 a.m., as bus break having failed, driver Sureshkumar Naranbhai stopped the bus off the road. When accused Nos.1 and 2 asked him as to why he brought the bus from Ankleshwar Depot, he replied as the departure time having been over. Accused Nos.1 and 2, therefore, became excited and furled filthy abuses on him. When he requested them not to furl abuses, they caught hold of him and gave fist blows. On hearing his shouts, bus driver Sureshbhai and witness Dalpatbhai Bhagwanbhai tried to save him from further beating. In pursuance of said complaint, investigation started and as there appeared prima facie case against the accused, a charge sheet was filed against them. 2.1. As the offence was triable exclusively by Court of Sessions, the learned Magistrate committed the case to the Special Court. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 2.2. To prove the guilt against the accused, prosecution examined following witnesses: P.W. No. Name of witness Exhibit No. 1 Shantilal Shankarbhai Vasava 10 2 Sureshbhai Naranbhai Kharaiya 12 3 Rameshbhai Chimanbhai Shah 13 4 Dr. Hence, the prosecution was asked to prove the guilt against the accused. 2.2. To prove the guilt against the accused, prosecution examined following witnesses: P.W. No. Name of witness Exhibit No. 1 Shantilal Shankarbhai Vasava 10 2 Sureshbhai Naranbhai Kharaiya 12 3 Rameshbhai Chimanbhai Shah 13 4 Dr. Jitendrabhai Zinabhai Rathod 16 5 Sendhabhai Tribhovanbhai Parmar 19 6 Kanjibhai Rupjibhai Parmar 23 7 Bhupendrabhai Kanjibhai 27 2.3. The prosecution also relied on following documentary evidence : Sr. No. Description Exhibit No. 1. Original complaint 11 2. Injury certificate 18 3. Police yadi 24 4. Panchnama of scene of offence 20 5. Proof of caste of the complainant 28 2.4 After filing of closing pursis by the prosecution, further statements of accused under Section 313 of Cr.P.C. were recorded. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, the impugned judgment and order was delivered by the trial court giving rise to the present appeal by the original accused. 3. Heard learned advocate, Mr. Vaibhav N. Sheth for the appellants-original accused and learned APP, Mr. K.L. Pandya, for the respondent-State. 4. Mr. Vaibhav Sheth, learned advocate for the appellants-original accused drew attention of this Court on the depositions of seven witnesses recorded by the trial court as well as the panchnama at Exh.20 drawn of the scene of offence together with the deposition of two witnesses of the said panchnama examined by the prosecution vide Exhs.13 and 19. He further drew attention of this Court on the complaint at Exh.11 as well as the deposition of the complainant recorded at Exh.10 and submitted that prima facie on a bare reading, it appears that the complainant has supported the case of the prosecution, but, if certain admissions in the cross-examination appearing on the record are considered, then the explanation given by the original accused in their further statements recorded under section 313 of the Code appears to be genuine which important aspect has not been properly dealt with nor considered by the trial court. He further submitted that driver of S.T.bus bearing registration No.GJ-1-Z-4794 was, as such, accompanying the complainant when both of them had boarded another bus bearing registration No.GJ-18-V- 4840 but, as such, he has not supported the case of the prosecution and thereafter nothing substantial has been forthcoming on the record. He further submitted that driver of S.T.bus bearing registration No.GJ-1-Z-4794 was, as such, accompanying the complainant when both of them had boarded another bus bearing registration No.GJ-18-V- 4840 but, as such, he has not supported the case of the prosecution and thereafter nothing substantial has been forthcoming on the record. He then submitted that no independent witnesses though available in the bus has been examined by the prosecution and evidence of panch witness No.1 of the panchnama of scene of incident i.e. Sendhabhai Thribhovanbhai Parmar examined at Exh.19 and who is the Depot In-Charge, creates doubt in the case of the prosecution more particularly when referring to the scene of incident narrated by him in his deposition and the same narrated in the panchnama of scene of offence at Exh.20 is different. 5. Learned APP, Mr. Pandya, drew attention of this Court on the deposition of the complainant-Shantilal Shankarbhai Vasava at Exh.10 and the complaint at Exh.11 and submitted that the complainant has fully supported his complaint. According to him, complaint was filed immediately after the incident at 9.30 a.m. and the complainant was referred to the hospital with yadi where Dr. Jitendrabhai Zinabhai Rathod Exh.16 had examined him. Injuries alleged to have been received by the complainant due to the assault of the appellants-accused were proved through the evidence of Dr. Jitendrabhai Zinabhai Rathod who issued injury certificate at Exh.18. He further submitted that considering the fact that the complainant on whom assault was done by the accused is public servant being a conductor in the ST bus, the case should not be liberally construed and the conviction for the offence punishable under section 332 read with section 114 of IPC imposed by the trial court should be confirmed. 6. I have considered the above referred rival submissions made by learned advocates appearing for the respective parties together with the impugned judgment and order of conviction and sentence. 7. 6. I have considered the above referred rival submissions made by learned advocates appearing for the respective parties together with the impugned judgment and order of conviction and sentence. 7. It is to be noted that the trial court while replying issue No.1 has narrated some admitted facts in paragraph No.8 of the impugned judgment and order viz., prior acquaintance between the accused and the complainant; the complainant being a Government servant was performing his duty as conductor in ST bus at Zagadia depot since 1997 and both the accused belong to Avidhya Village of Zagadia Taluka and used to commute to Ankleshwar to attend to their duties in the Postal Department. 8. In this case, the main witness is the complainant-Shantilal Shankarbhai Vasava, who has been examined as P.W.No.1 at Exh.10. He has deposed that while he was serving as a Conductor in ST Depot at the time of incident on 17.10.1997 at 6.45 a.m., he boarded the passenger in the bus bearing registration No.GJ-1-Z-4794 and started towards Rajpipla and at about 7.45 a.m., as the bus brake had failed, driver Sureshbhai Naranbhai stopped the bus off the road. At that time, he, driver as well as passengers got out of the bus and alighted another bus bearing registration No.GJ-18-V-4840 in which, the accused were sitting. The complainant went inside the bus and as per the case of the prosecution and as deposed by the complainant, accused No.2-Shahbhai told him as to why he came early. He has deposed that he knew Shahbhai as he used to take up and down on the job in Postal Department and after both the accused beat him, accused No.1 gave two kick blows on the head of the complainant. In his cross-examination, he has admitted that the accused had given a complaint in ST Depot against the complainant regarding early or late departure of the bus. He has also admitted in paragraph 3 of the cross examination that it is true that he has not stated in the FIR before the police that the accused came in the next bus. Moreover, as per the deposition of P.W.No.5-Sendhabhai Tribhovanbhai Parmar recorded at Exh.19, the accused came in private vehicle. Sendhabhai has also admitted in his cross examination that he had also gone to the police Station accompanying the complainant to lodge the complaint. Moreover, as per the deposition of P.W.No.5-Sendhabhai Tribhovanbhai Parmar recorded at Exh.19, the accused came in private vehicle. Sendhabhai has also admitted in his cross examination that he had also gone to the police Station accompanying the complainant to lodge the complaint. If initial portion of deposition of Sendhabhai as well as initial portion of the panchnama of scene of incident is verified, vital contradiction can be seen as far as place of incident is concerned. However, no explanation has been forthcoming on the record as to why Sendhabhai Parmar, who was, as such, Depot In-Charge and supposed to be performing his duty at the relevant depot was called to stand as panch. Sendhabhai has further admitted in his cross-examination that conductor has been beaten and his shirt was torn and it was seized by the police. This witness has further stated that his shirt was torn but particulars of recovery of shirt were not described in the panchnama. It is clear from the panchnama Exh.20 that although shirt was torn, said fact was not disclosed by the complainant either in his police statement or deposition. It also appears that shirt was not seized as muddamal. An important aspect of the case is that although independent witnesses such as passengers of the bus were easily available and although conductor of the second bus bearing registration No.GJ-18-V-4840 namely, Dalpatbhai was very much there in his bus when the alleged incident had taken place and although his statement has been recorded, neither any independent witnesses of the bus nor said Dalpatbhai has been examined by the prosecution for the reasons best known to them. It is pertinent to note that driver namely, Sureshbhai Naranbhai, who has been examined as P.W.No.2 at Exh.12 has not supported the case of the prosecution. 9. In light of above discussed evidence, if further statements of the accused recorded under section 313 of the Code are perused, it would reveal that the accused had lodged a complaint against the complainant before the Depot Manager that the complainant used to depart the bus early or reach the bus late. As discussed herein above, fact of previous filing of the complaint referred herein above by the accused has also been admitted by the complainant himself in para 2 of his cross-examination. As discussed herein above, fact of previous filing of the complaint referred herein above by the accused has also been admitted by the complainant himself in para 2 of his cross-examination. Learned advocate for the appellant submitted that keeping grudge of filing of the said complaint in mind, the present complaint Exh.11 has been filed by the complainant in order to falsely implicate the accused in the present case. This important aspect has not been dealt with or lost sight of by the trial court while passing the impugned judgment and order. Therefore, a doubt has been created in the mind of this court about authenticity of the case of the prosecution. In view of the above, this Court is of the opinion that a serious irregularity has been committed by the trial court in the impugned judgment and order of conviction and sentence warranting interference at the hands of this Court and therefore, the accused are entitled to benefit of doubt. The impugned judgment and order of conviction and sentence, therefore, requires to be quashed and set aside and the accused deserve to be acquitted of the charges levelled against them. Thus, the accused require to be set at liberty forthwith, if not required in any other case. The appeal, therefore, deserves to be allowed. 10. Thus, Criminal Appeal is allowed. Impugned judgment and order dated 17.7.2001 passed by the learned Additional Sessions Judge and Special Judge, Bharuch, in Sessions Case No.43 of 2000 is quashed and set aside and they are acquitted of the charges levelled against them. They are on bail and hence, their bail bonds shall stand cancelled. They are ordered to be set at liberty forthwith, if not required in any other case. Fine paid by them shall not be refunded. Record and proceedings shall be sent back forthwith to the trial court. Appeal allowed.