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2017 DIGILAW 1752 (GUJ)

State of Gujarat v. Rajubhai Parshottam Nayka

2017-10-11

ANANT S.DAVE, R.P.DHOLARIA

body2017
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 30.6.2006 rendered by learned Additional Sessions Judge, Valsad in Sessions Case No. 33 of 2002 (Old No. 70 of 1994) whereby learned trial Judge was pleased to acquit the accused for the offences under sections 120-B, 333, 332, 337, 353, 186, 183, 395, 397, 224, 225 and 504 of Indian Penal Code, section 25(1)(a) of the Arms Act and sections 66(1)(B), 75, 80, 81, 83 and 116-B of the Bombay Prohibition Act. 2. The short facts giving rise to the present appeal are that V.D. Vanar, PSI of State Prohibition Squad, State of Gujarat while on duty on 10.1.1992 intercepted one TATA Mini Truck bearing registration No. GQO 1169 which was passing over the National Highway No. 8 within vicinity of Udwada carrying 177 boxes of foreign liquor. One Dipak Naranbhai Patel, Raju Parshottam Nayaka and Bhulabhai Rambhai Nayaka were arrested along with the aforesaid 177 boxes of foreign liquor worth of Rs. 2,70,965/-. The detailed panchnama and seizure memo was issued. During the course of inquiry, it was revealed that said foreign liquor was belonging to one Ratansha Parsi who was known bootlegger of Pardi. After making search and seizure while the complainant was proceeding in the aforesaid truck along with the seized articles and the accused towards Pardi police Station, at that time, at about 18.15 hours, at the cross roads, nearby Pardi, accused Ratansha, Aspi Savarsha, Baji Shavksha, Kirit Ratansha, Nalin, Satish, Suresh, Shyam Shorbsha, Chingu Shorbsha and others came and abused the police personnels as well as the complainant and pelted stones, while the complainant who was sitting beside the driver in the aforesaid truck was dragged out from tempo and given fist blows as well as also assaulted by stick, due to which, the complainant sustained injuries over his thumb and back side of the body. At that time, the driver of the truck along with muddamal proceeded further. At that time, he intercepted one another truck and chased the truck which was proceeding ahead. At that time, the driver of the truck along with muddamal proceeded further. At that time, he intercepted one another truck and chased the truck which was proceeding ahead. While, he was chasing the truck, at that time, one Maruti Van No. 560 came in front of the truck, at that time, the complainant and other police officials were branded as terrorists and robbers by them. At that time, the accused gave stick blow on Head Constable Bhikhaji Naran and other staff members were also beaten. The muddamal articles were taken away from mini truck. One VIP bag of the Head Constable was also taken away which was containing 9 mm cartridge and bag of Pravin Chauhan, Head Constable was also taken away. Therefore, the complainant lodged the complaint before the Pardi Police Station. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet 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 trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 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 Ms. C.M. Shah, 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 the finding recorded by learned trial Court is based upon the presumptions and surmises. 5.1 Ms. C.M. Shah, 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 the finding recorded by learned trial Court is based upon the presumptions and surmises. She further submitted that learned trial Court has not rightly appreciated the evidence on record. She submitted that this is very serious offence wherein the police officials who were on duty came to be assaulted by the accused and the said fact is also getting corroboration from the medical evidence as well as their evidence, though, learned trial Court noticing discrepancies in the evidence amongst the witnesses and injured witnesses wrongfully given the benefit of doubt. She, however, gracefully conceded that the investigation is not properly carried out by the police and it appears that local police had not at all supported the State Prohibition Squad headed by Mr. V.D. Vanar, PSI, due to which, some lacuna remains even in the investigation as well as in prosecuting the original accused from whom foreign liquor came to be seized and even the muddamal register as well as muddamal article worth of Rs. 2,70,965/- came to be destroyed due to which it could not be produced before the learned trial Court at the time of trial and therefore, learned trial Judge in its judgment, more particularly, in paragraph 34 directed for taking appropriate action against erring officials. In her 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.Hardik Raval, 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. He submitted that learned trial Judge has recorded ample reasons while delivering the judgment and based its findings on the evidence available on record and that there is no evidence on record to link the respondents accused with the crime in question as the complainant and witnesses were from the State Prohibition Squad, Ahmedabad and they were not knowing the accused. He submitted that test identification parade was also not carried out to establish identity of each of the accused and there appears no uniformity in the evidence of the local police officials who joined with the squad and material contradictions were recorded on various aspects by learned trial Court and therefore, learned trial Judge has rightly extended the benefit of doubt. 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 respondents accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Ms. C.M. Shah, learned APP for the appellant State and Mr. Hardik Raval, learned advocate for the respondents accused. 8. This Court has minutely gone through the impugned judgment and order rendered by learned trial Court as well as the evidence on record in the nature of paper book. 9. We have thoughtfully considered the rival submissions came to be advanced by learned advocates for the parties. We have gone through the entire Record and Proceedings as well as the impugned judgment. 10. On going through the evidence of material witnesses during the course of hearing, it was noticed that the original case for carrying on 177 boxes of foreign liquor worth of Rs. 2,77,965/- came to be lodged against Dipak Nagarbhai Patel, Rajubhai Parshottam Nayka and Bhulabhai Ramubhai Nayka was not sent for trial after investigation before the competent court and therefore, the matter was adjourned and while making inquiry from the concerned police station and the concerned competent court, learned APP appraised us that no such case was lodged before the learned trial Court for trial and hearing. Even, the muddamal register as well as muddamal 177 boxes of foreign liquor worth of Rs. 2,77,965/- also came to be destroyed in Pardi Police Station itself and therefore, learned trial Court passed certain remarks and given specific direction in paragraph 34 of the impugned judgment, as such. 11. On overall evaluation of the evidence on record and factual scenario, we are noticing that as the trap was laid by the State Prohibition Squad, State of Gujarat stationed at Ahmedabad, headed by Mr. 11. On overall evaluation of the evidence on record and factual scenario, we are noticing that as the trap was laid by the State Prohibition Squad, State of Gujarat stationed at Ahmedabad, headed by Mr. V.D. Vanar, PSI, local police at the relevant time at Pardi Police Station did not support at all and on the contrary, during the course of trial also, police officials gave contradiction versions so far as the incident of beating the officials of State Prohibition Squad are concerned. Not only that, but even it appears that they appears to have colluded with the accused, due to which no concern or seriousness was shown by the local police while prosecuting the accused who alleged to have beaten the complainant i.e. Mr. V.D. Vanar and other police officials belonging to the State Prohibition Squad. Similarly, local police at the relevant time, did not launch any prosecution against the aforesaid three persons from whom 177 boxes of foreign liquor worth of Rs. 2,77,965/- were seized and even they allowed to disappear the muddamal register and destroyed muddamal articles which were lying in Pardi Police Station. 12. In view of the aforesaid nature of evidence, so far as assault and beating complainant Mr. V.D. Vanar as well as other injured police officials belonging to State Prohibition Squad is concerned, there appears no uniformity in the evidence of the complainant and other local police officials who were involved in investigating of the crime in question, as such. We are also noticing that as the State Prohibition Squad stationed at Ahmedabad laid the trap and intercepted mini truck and found out 177 boxes of foreign liquor from the aforesaid three persons, their identity came to be disclosed. However, while carrying on seized muddamal articles being 177 boxes of foreign liquor as well as accused in the seized mini truck No. GRQ 1169, the present accused alleged to have attacked branding the police officials of State Prohibition Squad as terrorists and robbers and while prosecuting the aforesaid case of assault and beating to such police officials belonging to the State Prohibition Squad, there appears no uniformity in the evidence as regards to the genesis of the incident. The actual attack as well as the persons who were involved in the attack as such, some of the witnesses deposed that there was mob of nearly 150 persons, whereas the prosecution failed to establish identity of the present respondents as they were unknown so far as the police belonging to the State Prohibition Squad is concerned and therefore, the prosecution miserably failed to establish identity of the present accused beyond reasonable doubt and, therefore, learned trial Court has rightly extended the benefit of doubt to them. 13. 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. 14. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondents accused 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. 15. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith. 16. While hearing this appeal, we are noticing very disturbing feature wherein the police officials belonging to the State Prohibition Squad came to be attacked by the group of bootleggers while carrying on seized articles along with the truck in order to report the crime to the concerned Police Station at Pardi though local police officials of Pardi Police Station, at the relevant time, did not support prosecuting as well as even in proving the case against the present respondents who alleged to have attacked and even inflicted serious and grievous injuries over the persons of the complainant and other police officials. We are also noticing, as stated above, that there is gross negligence on the part of the police officials who were on duty at the relevant time stationed at Pardi Police Station for not launching the prosecution against Dipak Nagarbhai Patel, Rajubhai Parshottam Nayka and Bhulabhai Ramubhai Nayka from whom 177 boxes of foreign liquor were sized, seizure memo was issued and even the complaint was also lodged by Mr. V.D. Vanar before the official of Pardi Police Station and custody of the aforesaid three accused was also handed over to them along with muddamal mini truck, 177 boxes of foreign liquor worth of Rs. 2,77,965/- though the concerned Police did not file any charge-sheet and failed to prosecute them. 17. In view of the aforesaid lapse emerging out from the Record and Proceedings of the case, we deem it appropriate to direct the Director General of Police, Gujarat State, Gandhinagar to take appropriate action against erring police officials of Pardi Police Station who were on duty at the relevant time keeping in mind the detailed direction came to be issued by learned trial Court in paragraph 34 of the impugned judgment and we hope and trust that the Director General of Police, Gujarat State shall take necessary steps against erring police officials of Pardi Police Station and will come to the logical conclusion at the earliest.