Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 2077 (GUJ)

State of Gujarat v. Niraj Patel

2016-09-30

R.P.DHOLARIA

body2016
JUDGMENT : 1. The appellant State of Gujarat has preferred Criminal Appeal No. 513 of 2007 under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 15.1.2007 rendered by learned Special Judge, Fast Track Court No. 3, Bharuch camp at Ankleshwar in Special Atrocity Case No. 38 of 2005, whereas the complainant has preferred Criminal Appeal No. 472 of 2011 against the aforesaid impugned judgment and order of acquittal. 2. The short facts giving rise to the present appeals are that on 29.8.2005 the complainant has filed the complaint before the court of learned Judicial Magistrate, First Class, Valiya stating the fact that at about 10.00 hours early in the morning when the complainant has gone to purchase vegetables after parking Bollero Car No. GJ 16 K 6444 on one side of Netrang Char Rasta, the respondent accused came near the car and demanded papers from Dilipbhai which were shown by him. It is alleged that the respondent accused has also told Dilipbhai that car has been parked on wrong side and hence he was directed to take car at the police station and thereafter issued memo of Rs.5000/- as a fine. It is alleged that thereafter the respondent accused snatched away Rs.2000/- and asked to bring Rs.3000/- from others. It is alleged that the respondent accused also abused the complainant, inflicted 25 to 30 blows with stick and also administered threat to involve in a false case. 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 as well as the complainant both have preferred the aforesaid Criminal Appeals before this Court. 5. 4. Being aggrieved by the same, the appellant State as well as the complainant both have preferred the aforesaid Criminal Appeals before this Court. 5. By way of preferring the appeals, the appellants have 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. Dabhi, 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. He submitted that though the complainant and witness Dilipbhai have supported the case of the prosecution, learned trial Court, relying upon certain other materials on record, did not believe the evidence and though oral evidence of the witnesses are getting corroboration from the medical evidence and other evidence on record, learned trial Court has wrongfully not believed the said evidence. 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. 5.2 Mr. Prashant Desai, learned Senior Advocate appearing for the complainant has reiterated and adopted the arguments advanced by learned APP in support of his arguments and requested to consider the same as part and parcel of his arguments on behalf of the complainant. 6. On the other-hand, Mr. Tulshi Savani, learned Advocate for the respondent 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. Savani further submitted that the complaint itself is concocted one. 6. On the other-hand, Mr. Tulshi Savani, learned Advocate for the respondent 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. Savani further submitted that the complaint itself is concocted one. He submitted that the complainant has voluntarily submitted himself before the Medical Officer wherein he did not name the accused, though prior to that, the complainant named the accused before learned Magistrate and the entire complaint and medical evidence are concocted in order to book the present respondent in the offence falsely as the respondent accused was threatened by the then MLA Mr. Mahesh Vasava on 14.7.2005 as his near relatives were booked for the offence under the Prohibition Act as well as the complainant and the witnesses were also wanted in other offences. He submitted that the present respondent filed the criminal complaint against the complainant as well as witnesses under section 186 of IPC on 27.8.2005 and as counter blast to that complaint, the present complaint has been filed. He submitted that the respondent was on duty as Police Sub Inspector and he was on patrolling and while discharging his duty, the respondent booked witness Dilipbhai as his car was hindrance to the smooth running of traffic on road. He submitted that so far as the offence under section 3(1)(x) of the Scheduled Castes and the Scheduled Castes (Prevention of Atrocities) Act, 1989 is concerned, admittedly, the respondent was not knowing the present complainant as well as witnesses and there is no evidence as regards to utterance of the derogatory words by the respondent concerning to the caste of the complainant and witnesses. He submitted that the complaint was filed before the learned Magistrate and before taking cognizance, the prosecution has not obtained requisite sanction as envisaged under section 197 of the CrPC. 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.B. Dabhi, learned APP for the appellant State, Mr. Prashant G. Desai, learned Senior Advocate for the complainant and Mr. Tulsi Savani, learned advocate for the respondent accused. 8. 7. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant State, Mr. Prashant G. Desai, learned Senior Advocate for the complainant and Mr. Tulsi Savani, learned advocate for the respondent 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. 8.1 PW 1 – Kiranbhai Thakorbhai Vasava has been examined at Exh.17. The witness has deposed that he studied upto B.Com; he along with Dilip and Bharat went to Netrang for filling up diesal in Bollero Car No. GJ 16 K 6444 and while leaving the car on the side of the road, they went to purchase vegetables, at that time, the respondent came there in civil dress and the respondent asked as to why the car is parked on the road which is hindrance to the traffic; the respondent also asked for the papers. The witness deposed that the respondent issued memo of Rs.5000/- for which, the witness gave Rs.2000/- and he assured to pay rest of the amount thereafter, at that time, the respondent got excited, abused and uttered derogatory words concerning the caste of the complainant and thereafter the respondent inflicted 25-30 blows with stick. The witness deposed that on the following day, he was produced before the learned Magistrate, at that time, he was threatened not to complain to learned Magistrate, otherwise, he will be encountered. The witness deposed that thereafter on 29.8.2005, he lodged the complaint before the court of learned Magistrate and also taken treatment in Bharuch Civil Hospital. The witness also deposed that belongs to Hindu Bhil community which is included in the Scheduled Castes and Scheduled Tribes community. In the cross examination, the witness has admitted that Mr. Chhotubhai Vasava, MLA Jhagadia is his uncle and son of Mr. Chhotubhai Vasava is also MLA of Dediyapada and he is his cousin. The witness has admitted that at the time of incident, there was festival of Janmashtami and respondent and other police officials demanded papers as regards to Bollero car, at that time, Dilipbhai was alone in the car and Bharat and he went to purchase vegetables. The witness has admitted that he has no acquitance with the respondent but he was knowing that he is PSI. The witness has admitted that he has no acquitance with the respondent but he was knowing that he is PSI. The witness has admitted that after the arrest, he was asked to sit on Otla and he was not beaten after 12.00 hours, but abused. The witness has admitted that he was enlarged on bail at the circuit house and he did not inform his advocate as regards to threatening him to kill in encounter. The witness has admitted that he did not even inform to learned Magistrate as regards to any such ill-treatment while he was produced before learned Magistrate; after getting released on bail, he was taken to his house by his relatives and thereafter, he discussed with the advocate and relatives and thereafter he filed the complaint. The witness has admitted that Government Hospitals are available at Valia and Dediyapada, though he has been examined at Bharuch Civil Hospital where he did not name anybody before the Doctor. 8.2 PW 2 – Dilipbhai Chotubhai has been examined at Exh.23. The witness has deposed almost in similar line to that of PW 1. In the cross examination, the witness has admitted that Bharatbhai Vasava was wanted accused. The witness has admitted that Chotubhai Vasava and Maheshbhai Vasava who are MLAs are his relatives. The witness has admitted that he was also wanted in the case at Surat. The witness has admitted that memo was issued in his name. 8.3 PW 3 – Dr. Lalitbhai Bhagubhai Patel has been examined at Exh.25. The witness has deposed that on 29.8.2005 when he was on duty as Medical Officer in Civil Hospital, Bharuch, at about 2.20 hours one Kiranbhai Thakorbhai Vasava came without police yadi and on examination, the witness found two injuries over the person of Kiranbhai and as regards to history, Kiranbhai stated that he was beaten by stick. In the cross examination, the witness has admitted that Kiranbhai did not name any person for inflicting injuries and he also opined that injury was caused within 24 hours. The witness has issued the certificate which came to be produced at Exh.27 wherein he has clearly narrated that he examined at about 2.20 pm on 29.8.2005 and the injuries stated by Kiranbhai are caused by assault with stick on 27.8.2005, he was being treated as OPD and the injuries were caused within 24 hours. The witness has issued the certificate which came to be produced at Exh.27 wherein he has clearly narrated that he examined at about 2.20 pm on 29.8.2005 and the injuries stated by Kiranbhai are caused by assault with stick on 27.8.2005, he was being treated as OPD and the injuries were caused within 24 hours. 8.4 Over and the above the aforesaid oral evidence, the complaint lodged by the present respondent against the complainant on 27.8.2005 clearly indicates that while the respondent was on duty along with Police Constables, Somabhai, Chimabhia and other staff members on the day of festival of Janmashtami and doing patrolling in Netrang town, at that time, one Bollero car No. GJ 16 K 6444 was found causing hindrance in smoothing running of traffic and, therefore, he inquired from the driver and asked him to give papers of the car; at that time, complainant Kiranbhai came there and while the complainant was interfering in discharge of official duty, the respondent lodged the complaint. 8.5 One another station diary entry No.21/2004 dated 14.7.2005 is also on record which clearly indicates that on the day of incident, while the respondent was on patrolling during nocturnal hours, at that time, when reached nearby Valia, Mahesh Chhotubhai Vasava telephoned from his number to mobile No.9427175866 of the respondent saying that the accused has lodged the case under the Prohibition act against his brother Ashok Babubhai Vasava and Narendrabhai Rameshbhai Vasava and hence, he will also file the false complaint against the accused under the atrocity and also asked the respondent not to lodge the complaint under the Prohibition Act. 8.6 On overall analysis of the evidence on record, it appears that as per the allegations levelled by the complainant that on 27.8.2005 at about 11.00 hours he was taken to the police station and before 12.00 noon, he was beaten on 27.8.2005 by the stick and the fact that he was threatened to kill in encounter by the present respondent, he did not mention the injuries over his person when he was produced before learned Magistrate and after getting bail, he himself got examined from the Bharuch Civil Hospital and upon examination, two injuries over his person were found to be fresh injuries within 24 hours on 29.8.2005. The complainant was examined at about 2.20 pm and hence, it appears that the injuries were inflicted after 27.8.2005 after noon and not on 27.8.2005 forenoon. 8.7 On evaluation of the documentary evidence in the nature of the FIR lodged by the present respondent while discharging his official duty, it appears that while in patrolling, the car of the complainant was found to be hindrance to smooth running of traffic by the respondent and, therefore, the driver of the car was booked and considering the said fact coupled with the station diary entry No.21/2004 dated 14.7.2005 wherein Meheshbhai Vasava, MLA threatened the present respondent in implicating false atrocity case, the entire case against the present respondent appears to be counter blast. The evidence of the complainant as well as witnesses is not getting corroboration from the medical evidence and when he himself has not narrated as regards to the injuries inflicted over his person by the respondent as alleged who was on duty as PSI to his advocate who came to him to enlarge him on bail and to learned Magistrate before whom, he was produced. Not only that the complainant himself got examined medically after 24 hours after getting bail itself clearly indicative of the fact that this is a clear case of concoction which calls for no interference by this Court. 8.8 So far as the allegation as regards to the offence under section 3(1)(x) of the Act is concerned, considering the facts of the present case, as discussed hereinabove, the provisions of section 3(1)(x) of the Act are not attracted. Under the circumstances, learned trial Court has rightly acquitted the respondent 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 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 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, these appeal fail and accordingly, both the appeals stand dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith. Appeal dismissed.