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2016 DIGILAW 1438 (GUJ)

State of Gujarat v. Bhoraniya Rafikbhai Hasambhai

2016-07-21

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 30.08.2005, recorded by the learned Judicial Magistrate First Class, Siddhpur, in Criminal Case No. 321 of 1995. 2. It is the case of the prosecution that on 30.12.1994 at about 8:00 hours, all the accused with help of each other removed marking pole which were kept by Surveyor for showing boundary of field. It is further the case of the prosecution that out of 100 cement poles, 60 poles were damaged by the respondents by inflicting axe blows and thereby damaged properties to the tune of Rs. 5,500/-. It is further the case of the prosecution that though there was a notification issued by District Magistrate, Mehsana under Section 135 of the Bombay Police Act, the respondents were found with deadly weapons and thereby committed offence under Section 135 of the Bombay Police Act. Accordingly, a complaint for the offences punishable under Sections 447, 427, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act was filed before Kakoshi Police Station. 3. In pursuance of the aforesaid complaint, the Police recorded the statements of the witnesses and after completion of investigation, filed charge-sheet which came to be committed to the learned trial Court. 3.1 At the end of the trial, after recording the statement of the accused under section 313 of the Cr.P.C. 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. 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 reiterated and urged the grounds mentioned in the memo of appeal. 6. 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. 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 447, 427, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act 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. 7. This Court has heard Mr. L.R. Pujari, learned APP for the appellant-State. 8. Having heard learned APP for the appellant-State of Gujarat 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, on 30th December, 1994 at about 8:00 hours, when the complainant was looking after the agricultural operation of agricultural land bearing survey No. 92/1 situated at village Dungari, at that time respondent digged out marking pole which were kept by Surveyor for showing boundary of field and out of 100 cement poles, 60 poles were damaged by the respondents-accused by inflicting axe blows and thereby damaged properties to the tune of Rs. 5,500/- and thereafter committed offence punishable under Sections 447, 427, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. 9. In order to bring home the guilt, the prosecution has examined 13 witnesses and also produced several documentary evidences. P.W. - 1-Yusufbhai Rahemanbhai has deposed that when he was looking after the agricultural operation of agricultural land bearing survey No. 92/1 situated at village Dungari, at that time respondent digged out marking cement pole which were kept by Surveyor for showing boundary of field and out of 100 cement poles, 60 poles were damaged by the respondents-accused by inflicting axe blows. He had informed about the same to the land owner-Yasinbhai thereafter, he lodged a complaint. In his cross-examination, he has told that he did not know about any complaint under the provisions of Scheduled Castes and Scheduled Tribes Act was lodged against the present respondents as well as a suit is also instituted before the Mamlatdar Court. P.W.2-Yasinbhai Noormohammad has deposed that on the day of incident i.e. 30th December, 1994, he was at Bombay and on that day, the work of land was to be done by one Mohan. In his cross-examination, he has admitted that he is not an eye-witness. He has also admitted that so far as the dispute of the land is concerned, the case is pending before Mamlatdar Court. He has also admitted that his partner Mohanbhai lodged complaint against the present respondents under the provisions of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and he was witness of the said case. P.W. - 3-Mohanbhai Kevabhai has deposed that when he was working at the agricultural land alongwith Yusufbhai, at that time respondents digged out marking cement poles which were kept by Surveyor for showing boundary of field. He has also admitted that previously, he lodged a complaint against the present respondents under the provisions of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 t. 10. On overall analysis of the evidence on record, the learned trial Court has appreciated their oral evidence and admittedly the owner of the land Yasinbhai Noormohammad did not witness the incident, however, the evidence of complainant-Yusubhai as well another partner of the owner-Mohanbhai suffers from the vice of contradictions as well as improvements. On overall analysis of the evidence on record, the learned trial Court has appreciated their oral evidence and admittedly the owner of the land Yasinbhai Noormohammad did not witness the incident, however, the evidence of complainant-Yusubhai as well another partner of the owner-Mohanbhai suffers from the vice of contradictions as well as improvements. On going through the entire evidence on record, nothing reveals from the record that the present respondents had trespassed upon the land. As per the say of the complainant as well as witnesses, the agricultural field where the incident occurred was surrounded by other fields and none was examined as an independent witness by the prosecution. It also appears from the record that a case is pending before the Mamlatdar Court regarding the dispute of land against the present respondents which was pursued up to the High Court and that proceedings were pending before the Deputy Collector. It also appears from the record that a complaint was filed by Mohanbhai against the present respondents under the provisions of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 wherein the present respondents were acquitted. 11. Taking into consideration the aforesaid history as well as genesis of the incident, the present proceedings appears to have been instituted as counter blast as the present respondents have already instituted a suit before the competent Court for getting right to access the disputed filed. In view of the aforesaid nature of evidence, the learned trial Court has properly appreciated the evidence and rightly acquitted the respondents, which calls for no interference. 12. 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. 13. 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. 14. 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. 14. 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.