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Gujarat High Court · body

2016 DIGILAW 1356 (GUJ)

State of Gujarat v. Ghanshyampuri

2016-07-18

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal preferred by the State of Gujarat under Section 378(3) of the Criminal Procedure Code, 1973, against the judgment and order of acquittal dated 21.05.2004, recorded by the learned 2nd Extra Assistant Judge, Veraval, in Special Atrocity Case No. 46 of 2003. 2. It is the case of the prosecution that on 11.6.2003 at about 19.00 hours, the complainant had gone for prayer at Shiv Temple situated in Kandhi village, at that time, the accused No. 1 gave filthy abuses so as to instigate the complainant and thereafter, the accused No. 1 assaulted the complainant by trishul on his head, while the accused No. 2 had given knife blows to Pravinbhai, the son of the complaint, who intervened in the said scuffle, trying to save the complainant, whereas the accused No. 3 said to have given the kick and fist blows to said Pravinbhai and thereby, the accused committed the offence as alleged against them, for which a complaint for the offences punishable under Sections 323, 324, 504, 506(2) and 114 of the IPC and under Section 3(1)(x) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was filed before the Una Police Station. 3. In pursuance of the aforesaid complaint, the Police recorded the statements of the witnesses and after completion of investigation, filed the charge-sheet which came to be committed to the learned trial Court. After conclusion of trial and hearing, the learned trial Court acquitted the accused-respondents from all the charges levelled against them. Therefore, the present appeal. 3.1. In order to bring home the guilt, the prosecution has examined 8 witnesses and also produced documentary evidences such as original complaint at Exh. 13, Panchnama of scene of offence Exh. 17, Medical Certificates at Exh. 22 & 23, Caste Certificate at Exh. 30, and Station Diary at Exh. 34. 3.2. At the end of the trial after recording the statement of the accused under section 313 of the Cr PC and after hearing the arguments on behalf of the prosecution and the defence, the 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. 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 has 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. 6. Mr. Pujari, learned APP appearing for the State has contended that though the complainant as well as injured person have supported the case of the prosecution and their version is in accordance with the previous statements which were recorded before the police and even they also stated that in the history before the doctor, name of the assailants though there was some variance as regards the weapons used and muddamal, the trial court has wrongly recorded the acquittal as such. Mr. Pujari has also argued that the complainant was belonging to the schedule caste and the accused have uttered derogatory wordings concerning the caste of the complainant which were duly established, the accused have wrongly been given the benefit of doubt. Learned APP, therefore, urged to convert the judgment of acquittal into conviction as such. 7. Mr. Pujari, learned APP appearing for the 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 the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned trial Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. Learned APP has also taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned trial Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned trial Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondents for the alleged offences under Section 323, 324, 504, 506(2) and 114 of the IPC and under Section 3(1)(x) of the Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which requires to be reversed as such and the accused are required to be convicted. Mr. Pujari, learned APP has also drawn attention of this Court to the impugned judgment as well as record and proceeding of learned trial Court and stated that the order of acquittal recorded by the learned trial Court is required to be converted into conviction as such. 8. On the other hand, Mr. Javed Sindhi, learned advocate appearing for the respondents, argued that there is material variance as regards the muddamal which came to be recovered and the witnesses have admitted before the trial court that muddamal shown to the court were not used during the course of alleged assault. Furthermore, the history as regards the injury narrated before the doctor of Community Health Center, Una is fabricated one and does not inspire confidence and does not get even corroboration from the oral evidence and therefore also, the trial court has rightly not believed the evidence of the complainant as well as injured person as such. 9. Mr. Sindhi, learned advocate further argued that the learned trial Court has elaborately dealt with the evidence on record and rightly recorded the finding and acquitted the accused from the charges levelled against them which calls for no interference. He has supported the judgment of the trial court and lastly, urged to confirm the same. 10. Heard Mr. L.R. Pujari, learned APP for the appellant-State and Mr. Jadav Sindhi, learned advocate appearing for the respondents-accused. 11. He has supported the judgment of the trial court and lastly, urged to confirm the same. 10. Heard Mr. L.R. Pujari, learned APP for the appellant-State and Mr. Jadav Sindhi, learned advocate appearing for the respondents-accused. 11. Having heard learned counsel for the respective parties and having gone through the impugned judgment as well as record and proceedings of learned trial Court, on overall analysis of the evidence on record indisputably as per the prosecution case, the incident alleged to have occurred on 11.6.2003 evening when the complainant had gone for Darshan at Shiv Temple, at that time the respondent No. 1 who was holding Trishul has assaulted the complainant over his head, who sustained serious injury. In the said scuffle, Pravinbhai, son of the complainant intervened. At that time, the respondent No. 2 inflicted knife injury to him, whereas respondent No. 3 had given kick and fist blows to said Pravinbhai. Since the complainant was belonging to the schedule caste, the respondent No. 1 uttered derogatory words concerning the caste and thereby, respondents have committed the offence punishable under Sections 323, 324, 504, 506(2) and 114 of the IPC and under Section 3(1)(x) of the Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 12. PW-1-Hamir Khima, who is examined at Exh. 12 has deposed that on 11.6.2003, the incident occurred at Dudheshwar Mahadev temple which is situated on the bank of river. He also deposed that while he was going for Darshan, respondent No. 1 uttered derogatory words concerning his caste and assaulted with Trishul over his head and due to which, he shouted and hearing the same, his son Pravin intervened and at that time, respondent No. 3 had inflicted knife injuries on his hand and respondent No. 3 gave kick and fist blows to said Pravin. He has further deposed that muddamal shown to him during the course of trial were not used at the time of incident. He further deposed that on the day of incident, his hut was got burnt by the present respondents. In his cross-examination, he has admitted that complaint was not read over to him and while he was taken to the hospital he was conscious. He has also admitted that all the villagers are allowed for Darshan in the Dudheshwar Mahadev Temple. 13. PW-2-Pravinbhai Hamirbhai, who is examined at Exh. In his cross-examination, he has admitted that complaint was not read over to him and while he was taken to the hospital he was conscious. He has also admitted that all the villagers are allowed for Darshan in the Dudheshwar Mahadev Temple. 13. PW-2-Pravinbhai Hamirbhai, who is examined at Exh. 14 has deposed that while he was in the vicinity of Dudheshwar Mahadev Temple, he heard the noise and due to which, he had gone to the place of incident and noticed that respondent No. 1 had given blows with Trishul over the head of his father and blood was oozing out and because of that his father had fallen down and at that time, respondent No. 2 had given knife blow on his palm while the respondent No. 3 had given kick and fist blows. He denied that muddamal Trishul and knife which were shown during the course of trial were used by the present respondents. 14. PW-3 and PW-4 have witnessed the incident. PW-5-Dr. Hamirbhai Kababhai Gohil has deposed on 11.6.2003 that while he was serving in the Community Health Center, Una, the injured Pravinbhai Hamirbhai was brought before him. While examining him, said witness observed that Pravinbhai received the injury due to assault and he was discharged on 16.6.2003. On the same day, he also examined Hamirbhai Khimabhai and he informed that Kalu Megha and Bachu Govind assaulted him. The said witness also deposed that there were three injuries found on the person of injured, who was also discharged on 16.6.2003. The injury certificates also came to be produced in deposition of said witness. In cross-examination, said witness has admitted that the injury found on the injured persons, could have been possible due to falling of person. He was not able to state whether the injury found over the injured persons could have been inflicted by the muddamal. 15. PW-6-Suresh Umapati Pandey, who was served as Dy. Superintendent of Police at the relevant time and who has done investigation in the crime, has deposed that he carried out the panchnama of place of incident. He further deposed that he had also recorded the statement of several persons and also recovered the weapons used in the crime from the accused, arrested the accused and obtained necessary certificate etc. and filed the charge sheet. He further deposed that he had also recorded the statement of several persons and also recovered the weapons used in the crime from the accused, arrested the accused and obtained necessary certificate etc. and filed the charge sheet. He also identified the muddamal produced by the present respondents during the course of trial before the court. 16. From overall analysis of the evidence on record, it would appear that indisputably both the injured have not named the respondent No. 1-Ghanshyampari @ Chakapari Amarpari Gauswami before the doctor as he assaulted by Trishul, whereas during the course of deposition of doctor, the doctor stated that injured Pravin gave history injury due to assault. Not only that but even during the course of their oral depositions also, they have given contrary version to what has been stated before the doctor and even the alleged weapons like Trishul and knife which came to be recovered during the course of investigation were not actually used in the commission of offence. Therefore, from the overall evaluation of evidence on record, there is no uniformity as regards the oral evidence between the father and son, who are injured during the course of alleged offence. Even there is no uniformity as regards the allegations made concerning derogatory remarks made by the present respondents concerning the caste and community also. 17. 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. 18. 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. 19. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands discharged. R & P to be sent back to the trial Court, forthwith.