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Gujarat High Court · body

2016 DIGILAW 1721 (GUJ)

State of Gujarat v. Rekhaben Jayantibhai Patel

2016-08-11

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 10.02.2006 rendered by learned Presiding Officer, 9th Fast Track Court, Nadiad in Special Case No. 129 of 2004. 2. The short facts giving rise to the present appeal are that: The Complainant namely Dipakbhai Nagarbhai Makwana, residing at Meta, is at present residing and studying at Old Sardar Krushi Nagar, F-33/9. On 11.08.2004 in the evening at 06.30 complainant, his sister-in-law (Brother's wife) Bhumikaben and Vinodkumar Makwana were present at the house. At that time, complainant informed his mother, "Water is about to come so let us draw water from downstairs." His mother told him that let the water come then we will draw water. On hearing these words accused No. 1 Revaben Jayantibhai who was residing opposite the complainant's house told complainant's mother not to come down to draw water till they finish drawing water first. The complainant's mother informed her, "They do not have water to drink", so they be allowed to draw water first and that they both are doing Government job. As a result of which accused No. 1 Revaben got excited and started abusing to the mother of the complainant. At that time accused No. 4 Namrataben also came out from her house and started abusing the complainant's mother. The complainant further submitted in his complaint that accused No. 2 and 3-Jayantibhai and Ashishkumar also came there and supported accused No. 1 Revaben and told Revaben, "why is she starring?" and that we must teach a lesson to them. They told Revaben, "you may go where ever you want to go. We are not afraid of anybody. The complainant further submitted in his complaint that after that accused No. 1 Revaben brought a 'Dhoka' from inside the house and inflicted a blow on the right eyebrow of the complainant's mother. Accused No. 3 Ashish kumar and 4 Namrataben gave a kick blow to the complainant and his mother and because of the injury sustained by the complainant's mother on the head, blood was coming out and so she was given treatment. Hence, the complaint came to be lodged against the respondent accused. 3. Accused No. 3 Ashish kumar and 4 Namrataben gave a kick blow to the complainant and his mother and because of the injury sustained by the complainant's mother on the head, blood was coming out and so she was given treatment. Hence, the complaint came to be lodged against the respondent accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the respondent 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 11 witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313of the Criminal Procedure Code and hearing the arguments on behalf of the prosecution and the defense, 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. Learned APP has taken this Court through the paper-book and evidence on record and argued that learned trial Court has failed to appreciate the evidence in its proper perspective and wrongfully granted benefit of acquittal to the accused though there is ample evidence available on record to connect the accused with the crime in question. Learned Additional Public Prosecutor Mr. L.R. Pujari has argued that through the injured as well as complaining witness has supported the case of prosecution. By noticing some minor contradiction, the learned Trial Court has not believed the entire story of prosecution and wrongfully acquitted the accused. Learned Additional Public Prosecutor Mr. L.R. Pujari has argued that through the injured as well as complaining witness has supported the case of prosecution. By noticing some minor contradiction, the learned Trial Court has not believed the entire story of prosecution and wrongfully acquitted the accused. He submitted that the learned Trial Court while recording the finding has not properly appreciated the evidence on record and the learned Trial Court Judge has based its findings upon the presumptions and assumptions which are not permitted under the law and he has urged to convert the order of acquittal into the conviction. In his submission, 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. Padhya, 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. Padhya further submitted that the prosecution miserably failed to link the accused with the alleged crime. He has argued that the prosecution failed to establish the offences as alleged for which the present respondents have been charged. He has argued that the complainant as well as other witnesses have made material contradictions and made improvements in order to implicate the present accused in the offence punishable under the provision of the Atrocity Act. He has further argued that the prosecution has not at all examined any independent witnesses though available. He further argued that though the present respondents were charged with the offences punishable under the provisions of Atrocity Act, the investigation was carried out by the Police Sub Inspector and the Deputy Superintendent of Police has merely verified his investigation subsequently therefore, the entire investigation is tainted for the violation of the mandatory provision of Rule 7 of the Schedule Castes and Schedule Tribes (Prevention of Atrocities Rule), 1995 and in consequence thereof, no conviction can be recorded as such. He, therefore, submitted that 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 Page 4 of 9 the accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Mr. He, therefore, submitted that 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 Page 4 of 9 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. Padhya, 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 11.08.2004 at 06.30 in evening while the complainant as well as his family members were waiting for the drinking water, at that time the respondents wanted them not to draw water first and they were directed to take water after their turn over. At that time, the complainant requested that he had no drinking water in the house so let they may be allowed to draw water first. Hence, the respondents got excited and spoke abusive language as well as derogatory words concerning to the caste and community of the complainant, and it is alleged that respondents have beaten the mother of the complainant and thereby, the respondents, committed the offences punishable under Sections 323, 504and Section 3(1)(X) of the Schedule Castes and the Schedule Tribes (Prevention of Atrocities Act) 1989. 8.1 Prosecution Witness No. 1 Mr. Dipakkumar Nagarbhai Makwana who is the complainant has deposed that he is belonging to the Valmiki Caste and serving in the Agriculture University, Dantiwada and residing at F/33/9 quarter at third floor. Quarter is belonging to the university and the respondent No. 3 is residing in front of him. He was residing along with his parents, elder brother and sister-in-law. He has deposed that on 11.08.2004 at about 06.30 in the evening while they were waiting for the drinking water to come, at that time, the present respondent Revaben become excited and spoke abusive language and further spoke derogatory words concerning to his caste. At that time other respondents were also came out from the house and aided and abetted and thereafter, respondent Revaben brought the stick in her hand and assaulted the mother of the complainant. At that time, the neighbors who are residing nearby his quarter gathered at that place. At that time other respondents were also came out from the house and aided and abetted and thereafter, respondent Revaben brought the stick in her hand and assaulted the mother of the complainant. At that time, the neighbors who are residing nearby his quarter gathered at that place. At that time the respondents ran away from the place. Though the material improvement he made during the course of his cross-examination in chief are tried to brought on record. Prosecution Witness No. 2 Kashiben Nagarbhai Makwana and Prosecution Witness No. 3 Bhumikaben Vinodbhai Makwana have also deposed in the similar line in which the complainant has deposed and they have made some material improvements during the course of their depositions before the learned trial Court. 8.2 Prosecution Witness No. 4 Doctor Pruthviraj Shrinarayan Mena has deposed that while he was serving as a Medical Officer in the Primary Health Center, Dantiwada on 12.08.2004, at that time, complainant Dipak Nagarbhai Makwana as well as Kashiben approached to him for the medical examination, on examination of the person of Kashiben, simple injury over the eyebrow of right eye was found which could be possible by the Muddamal article No. 1. In the cross-examination, he admitted that, the injury over her person was simple in nature and that can be possible by falling on the blunt substance. Prosecution Witness No. 5 Shankarbhai Hirabhai Chavda, Prosecution Witness No. 6 Arvindbhai Mafatlal Barot, Prosecution Witness No. 7 Shankarsing Magansing Vaghela, Prosecution Witness No. 8 Dineshbhai Pataji Chauhan have not supported the case of the prosecution and they are declared to be hostile. 8.3 Prosecution Witness No. 9 Gunvantgiri Lalugiri Goswami who was serving as a Deputy Superintendent of Police, Tharad has deposed that while he was entrusted with the investigation, almost investigation was over. He merely verified the statements recorded by the investigation officer and filed charge-sheet. Prosecution Witness No. 11 Ashwin kumar Jamnadas Gondalia who was serving as a Police Sub-Inspector at the relevant time has carried out the entire investigation. In his deposition material improvement made by the witnesses Kashiben and Bhumikaben have brought on record in his cross-examination. 8.4 On the overall evolution of the aforesaid oral evidence of the complainant as well as the witnesses of the incident. In his deposition material improvement made by the witnesses Kashiben and Bhumikaben have brought on record in his cross-examination. 8.4 On the overall evolution of the aforesaid oral evidence of the complainant as well as the witnesses of the incident. The fact is clearly revealing that, while lodging the complaint the complainant narrated the incident as some altercation took place as regards to the issue arising out of drawing the drinking water and due to which the respondent become excited and assaulted and Revaben spoke abusive language. Thereafter, it appears that after about 7 to 8 days while recording other statements of complainant, the offence punishable under the provisions of the Schedule Castes and Schedule Tribes (Prevention of Atrocities Act), 1989 has been stated in his further statement narrating that the respondents uttered the derogatory words concerning the community of the complainant. On analysis of the evidence of the complainant as well as eye witnesses to the incident, it appears that there evidence is not uniform and while deposing before the learned Trial Court they have made material improvements implicating the present respondents in more serious offences which are contradictory in nature to each other. Not only that injury over the person of Kashiben was noticed by the Medical Officer, Primary Health Centre, Dantiwada was simple in nature though at the time of her examination she did not name any assailant before the doctor, not only that but in her cross-examination, she admitted that due to the incident she fallen down near doors. As per the deposition of the Doctor Pruthviraj, such injury over her person found over the right eyebrow of the eye is possible by falling down on blunt substance. In that view of the matter the prosecution failed to establish that the injury was caused by the present respondents. 8.5 So far as the offences punishable under the provisions of Section 3(1)(10) of the Schedule Castes and the Schedule Tribes (Prevention of Atrocities Act), 1989 is concerned indisputably, by lodging the complaint, the complainant did not mention the same in the complaint. 8.5 So far as the offences punishable under the provisions of Section 3(1)(10) of the Schedule Castes and the Schedule Tribes (Prevention of Atrocities Act), 1989 is concerned indisputably, by lodging the complaint, the complainant did not mention the same in the complaint. However, after about a week while recording the further statement by the investigating agency, the only general and vague allegation as regard to the respondents uttering derogatory words concerning to the Caste of the complainant are brought on record and while deposing the same before the learned Trial Court, complainant as well as two eye witnesses have made material improvements though such sort of facts did not find place in the complaint as well as the statement before the police in that view of the matter, learned Trial Court did not believe the two eye evidence of the complainant as well as the two eye witnesses. 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. For the reasons recorded above, no interference is called for by the Court in the reasons as well as the findings recorded by the learned Trial Court in the evidence available on record, no interference by this Court. The appeal is devoid of any merits and deserves dismissal. 12. 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.