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Gujarat High Court · body

2016 DIGILAW 1834 (GUJ)

State of Gujarat v. Zandavada Viraji Sonaji

2016-08-31

R.P.DHOLARIA

body2016
JUDGMENT : R.P DHOLARIA, J. 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 28.9.2006 rendered by learned Additional Sessions Judge, Patan in Special Atrocity Case No. 52 of 2005. 2. The short facts giving rise to the present appeal are that land bearing Survey No. 428 was allotted by the Government to the cooperative society. The complainant was the Chairman. It is alleged that the land was in possession of the complainant who was cultivating the same and civil suit was pending with respect to the said land. It is alleged that the Civil Court granted injunction in favour of the complainant and, therefore, the respondents were restrained from in any way involving with the possession of the complainant though the respondents trespassed in the land with dhariya and sticks in their hands. It is alleged that the accused also threatened the complainant to kill and also abused by caste. Hence, the complaint came to be lodged against the respondents accused. 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 several witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statements of the accused under section 313 of the CrPC 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. 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 though the case of the prosecution is fully supported by the complainant as well as other two witnesses, learned trial Court did not believe their evidence due to contradictions and improvements made by them. 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. Imran Pathan, 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. Pathan further submitted that there was no boundary in between the land of the complainant and the land of the accused and, therefore, civil suit is pending before the competent Civil Court. He submitted that as per the evidence of the complainant himself, while the present respondents were about to trespass the land, the complainant intervened and prevented them to enter into his land itself is indicative that the present respondents have not trespassed upon the land of the complainant. Further more, no concrete evidence reveals as regards to any sort of threatening as well as uttering derogatory words concerning the caste of the complainant. 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 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. Imran Pathan, 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. 7. This Court has heard Mr. L.R Pujari, learned APP for the appellant State and Mr. Imran Pathan, 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 8.7.2015 at about between 15.00 and 16.00 hours, the respondents tried to trespass upon the land admeasuring 6 acres and 6 gunthas of Revenue Survey No. 428 by holding weapons like dhariya and stick and while doing so, they spoken abusive language and derogatory words concerning the caste of the complainant and thereby the respondents have committed the offences punishable under sections 447, 504, 506(2) and 114 of Indian Penal Code and section 3(1)(iv) and (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 8.1 PW 4 - Pandya Girdharibhai Dharmaji has deposed that he is the Chairman of Radhanpur Taluka Anusuchit Samudayik Agricultural Cooperative Society. The witness deposed that the Government has granted the land admeasuring 6 acres and 3 gunthas of Revenue Survey No. 428 for the agricultural purpose and he is looking after the agricultural operations over the said land. The witness deposed that on 8.7.2005, he along with the driver and others were at their agricultural land, at that time, respondent Radha Viraji and Puna came there along with their tractor and got excited and tried to trespass upon the land belonging to the society; at that time, he intervened, due to which, the said respondents spoke abusive language concerning the caste and community and also threatened to kill and thereafter, they fled away from the place of incident and thereafter, he lodged the complaint. In the cross examination, the witness has admitted that he got computerised complaint prepared from the market and the complaint was lodged on 11.7.2005 after about 3 - 4 days from the date of incident. The witness has also admitted that he has not mentioned in the complaint regarding derogatory words. 8.2 PW 5 - Hajariram Machhraji has deposed that on the day of incident, he was driver of his tractor. The witness has also admitted that he has not mentioned in the complaint regarding derogatory words. 8.2 PW 5 - Hajariram Machhraji has deposed that on the day of incident, he was driver of his tractor. The witness stated that when he reached at the place of incident, the respondents were present along with their tractor and they were tilling the land through the tractor; at that time, quarrel took place, due to which, the respondents fled away from the place of incident. In the cross examination, the witness has admitted that the complainant is his relative. The witness has admitted that on the day of incident, there was merely altercation and no scuffle. PW 6 - Bijalbhai Jivaji has deposed that on the day of incident, he was at the place of incident. The witness has stated that he had seen respondent No. 2 - Punabhai Nathabhai and respondent No. 3 - Radhaben Viraji along with the tractor and they threatened them to go out from the agricultural land and he knows the respondents. In the cross examination, the witness has admitted that as regards to the land, the dispute is subsisting for about four years and neither the complainant nor the respondents are taking any crop from the disputed land. The witness has admitted that civil dispute is going on and even the criminal complaint was also filed previously. 8.3 On overall analysis of the evidence on record, it is clear that the complainant as well as two witnesses are near relatives and even on evaluation of their evidence, it appears that there was dispute going on since four years as regards to the agricultural land allotted to the society of Survey No. 428. Out of the said survey number, the land admeasuring 1 acre and 9 gunthas is belonging to the present respondents and the land admeasuring 6 acres and 6 gunthas is belonging to the complainant - society. Indisputably, there was no boundary mark in between the aforesaid two lands belonging to the complainant as well as respondents for which the civil suit as well as appeals were preferred. Indisputably, there was no boundary mark in between the aforesaid two lands belonging to the complainant as well as respondents for which the civil suit as well as appeals were preferred. Under the circumstances, taking into consideration the evidence of the complainant, while the respondents were arrived at the place of incident and when they were trying to trespass upon the land belonging to the complainant, at that time, the complainant as well as other witnesses intervened and the respondents were stopped, due to which, some altercation took place and no incident of beating has taken place as per the prosecution version. Keeping in mind the said fact as well as the fact that none of the witness has stated as to who spoke derogatory words concerning the caste of the complainant and the complainant himself has admitted in the cross examination that he did not mention in the complaint regarding derogatory words spoken by the respondents concerning the caste of the complainant. In this view of the matter, the prosecution has miserably failed to establish the case against the respondents. Under the circumstances, learned trial Court has rightly acquitted the respondents accused considering the nature of evidence on record. 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 respondents of the charges leveled against them. 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.