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Gujarat High Court · body

2016 DIGILAW 2001 (GUJ)

State of Gujarat v. Govind Pancha Bharai, Rabari

2016-09-07

R.P.DHOLARIA

body2016
JUDGMENT : R.P. DHOLARIA, J. : 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 29/07/2006 recorded by the learned Presiding Officer, 3rd Fast Track Court, Junagadh in Special Atrocity Case No. 35 of 2005 whereby the learned Trial Judge acquitted the respondents-accused, of the charges for the offence punishable under Sections 143, 147, 148, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. Brief facts of the case are that on 26/03/2005, at about 8:30 p.m while the complainant and his friends Naresh Raja, Mukesh Ravji, Mukesh Chana etc. were sitting in maholla near water tank, all the accused persons in abettment of each other assaulted the complainant and prosecution witnesses in which accused persons were having pipe, iron rod, stick, axe, dharia and they were shouting to beat the complainant and prosecution witnesses by saying “Maro, Maro.”. That all the accused have raised dispute regarding coconut of holi pyre and thereby gave filthy abuses to the complainant and prosecution witnesses relating to their caste by using words “dhedha” with clear intention to insult the complainant and prosecution witness in public at large. That the complainant and witnesses prayed to forgive but the respondents threated to kill them and thereby committed offence under Sections 143, 147, 148, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Therefore, a complaint was registered. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondents were arrested and, ultimately, charge-sheet was filed and submitted the same before the learned Chief Judicial Magistrate, Junagadh. However, as the case being exclusively sessions triable, the same was committed before the learned Presiding Officer, 3rdFast Track Court, Junagadh, as per Section 209 of the Code of Criminal Procedure where the case was registered as Special Atrocity Case No. 35 of 2005. The trial was initiated against the respondents. 3. To prove the case against the present respondents-accused, the prosecution has examined about eleven witnesses and also produced several documentary evidence. 4. The trial was initiated against the respondents. 3. To prove the case against the present respondents-accused, the prosecution has examined about eleven witnesses and also produced several documentary evidence. 4. At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C, and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 29/07/2006. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 6. This Court has heard Mr. L.R Pujari, learned APP for the appellant-State and Mr. Dhaval Kansara, learned advocate for Mr. Premal Rachh, learned advocate for the respondents. 7. Mr. L.R Pujari, learned Additional Public Prosecutor for the appellant-State has argued that though the complainant and other witnesses who were present at the time of incident have supported the case of the prosecution and narrated as to how the present respondents were holding the weapons in their hands as well as they threatened and uttered derogative words concerning caste and community of the complainant, the learned trial court did not believed the same observing that there was no uniformity in the evidence of the complainant as well as other witnesses. Learned APP has argued that the incident as alleged in nutshell got proved from the evidence of the complainant and other witnesses and therefore, that could have been believed and the accused could have been convicted. Learned APP has contended 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 taken this court through the oral as well as the entire documentary evidence. It is further contended by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. Learned APP has taken this court through the oral as well as the entire documentary evidence. It is further contended by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also contended by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondents for the alleged offence under Sections 143, 147, 148, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act which requires to be reversed as such and the accused are required to be convicted. 8. On the contrary, Mr. Dhaval Kansara, learned advocate for Mr. Premal Rachh, learned advocate for the respondents supported the impugned judgment of acquittal and has argued that indisputably while during Holi festival the complainant as well as other respondents tried to pull out coconut from holi pyre fire and at that time some altercation took place and due to which on the following day, all the respondents alleged to have threatened and uttered derogative words concerning the caste and community of the complainant, however, they have not shown holding different weapons and none has beaten anyone and, therefore, the evidence on record is contrary and improvements are made by the witnesses regarding the incident of holi festival as well as following day and, therefore, the learned trial court has rightly not put reliance upon the said evidence. Consequently therefore, the finding recorded by the learned trial court does not require any interference by this Court. 9. This Court has minutely perused the oral as well as documentary evidence available on record and gone through the impugned judgment and order passed by the trial court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant-State and learned advocate for the respondents. 10. 10. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings, as per the prosecution version, it clearly reveals that on 26/03/2005, at about 8:30 p.m, when the complainant and his friends were being seated nearby water tank situated in village Khamdrod, at that time, present respondents, by forming unlawful assembly came over there and uttered derogative words concerning caste and community of the complainant and threatened them to kill them and thereby committed offence punishable under Sections 143, 147, 148, 504, 506(2) read with Section 114 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 11. PW-1 Kiranbhai who is the complainant has deposed that he is resident of village Khamdrod. He has deposed that on the day of incident, when he was being seated along with his friends nearby water tank, due to incident happened on the previous day at the time of holi festival, the respondents came over there holding different weapons in their hands and were abusing and threatened them to kill. In the cross examination, he has admitted that incident occurred during nocturnal hours. It is also admitted by him that when the incident occurred, many persons were also being seated there. He has admitted that he did not know who pulled out coconut from holi pyre. He has also admitted that he lodged the complaint regarding the incident happened on the day of holi while celebrating holi festival. 12. PW-2 Nareshbhai has deposed in similar lines to which the complainant deposed. However, he has deposed that the incident happened on 25/03/2005 as well as on 26/03/2005. Other witnesses have also deposed in similar lines. 13. On overall analysis of the evidence on record, it is emerging out that on 25/03/2005 while celebrating holi festival, one person from the respondents side trying to pull out burning coconut from holi pyre, however, the same fell nearby the complainant and due to which altercation took place but the complaint was not lodged on the same day but lodged on the third day i.e on 27/03/2005. It appears from the complaint that by keeping grudge due to said incident, the present respondents forming unlawful assembly came over to the water tank of village where the complainant as well as other witnesses were being seated and abused them and threatened them to kill as well as uttered derogative words concerning caste and community of the complainant appears to have been concocted. Prima facie as alleged in the complaint as well as from the evidence of other witnesses, having keeping grudge over the incident of previous day of incident, the respondents while holding different weapons came over to the place of incident, though none of the respondents have beaten anybody or attacked or even tried to assault anyone which itself is indicative of the aforesaid fact alleged to have been concocted in order to avoid the fact of lodging delayed complaint. Even otherwise also, on overall analysis of the evidence on record, there appears no uniformity so far as evidence of the complainant as well as other witnesses are concerned. The complainant and other witnesses told the different story as regard to incident happened on 25/03/2005 and 26/03/2005. Admittedly, neither the complainant nor any witnesses has specifically named any one of the respondents uttering a specific abuse or a specific words concerning caste and community of the present complainant so as to insult him. The learned Trial Court has also appreciated the evidence on record and this complaint alleged to have been lodged for trivial issue of altercation which took place while celebrating holi festival and tried to invoke the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 14. For the reasons recorded as above, it appears that the learned trial court has rightly appreciated the evidence on record and rightly acquitted the accused from the charges leveled against them which calls for no interference by this Court. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. This Court find that the findings recorded by the 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 of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. This Court find that the findings recorded by the 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 compete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal. 15. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged.