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2017 DIGILAW 441 (GUJ)

State of Gujarat v. Mehurbhai Kanabhai Dhandhal

2017-02-21

ABDULLAH GULAMAHMED URAIZEE

body2017
JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The State is in appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code" for short) to question the legality and validity of the judgment and order of acquittal dated 29.09.2014 passed by the 3rd Additional Sessions Judge, Bhavnagar in Special Atrocity Case No. 12 of 2014, vide which the respondent came to be acquitted of the offences punishable under Sections 323, 504, 506(2), 403 read with Section 114 of the Indian Penal Code ("I.P. Code" for Short) & Section 135 of G.P. Act and under Section 3(1)(X) of Scheduled Caste & Scheduled Tribe Prevention of Atrocities Act, 1989 ("Atrocity Act" for Short) read with Section 135 of the Bombay Police Act ("B.P. Act" for Short). 2. The prosecution story as unfolded during the trial is that on 19.10.2013, when the complainant was returning from Village Mandvi, after completing lighting work at that Village, at about 12:45 hours, when he reached the river, the accused were grazing their cattle. They called the complainant, used insulting language and blamed the complainant that "Dheda, why don't you want to do our work". Saying so they started abusing the complainant. Complainant asked the accused not to do so. Hence, accused got excited and started beating complainant. Accused Mehur Kanabhai inflicted stick blow, all over the body of the complainant indiscriminately. Accused Sardulbhai was having axe and the back side of the Axe was used to inflict blow to the complainant on the right elbow and hence the complainant started bleeding. Accused Mansurbhai was having stick with which he inflicted blow on the back of the complainant. All of them inflicted kick and fist blows also. They compelled the complainant to put off the clothes. The accused threatened the complainant that if he makes a complaint he would be killed. 3. Complaint was lodged before Gariyadhar Police Station for offences punishable under Sections 323, 504, 506(2), 403, 114 of I.P. Code and Section 135 of G.P. Act as well as Section 3(1)(X) of Atrocity Act. Charge sheet was filed before the JMFC, Gariyadhar. As the case was triable by the Sessions Court, under Section 209 of CR.P.C. the same was committed to Sessions Court. 4. Charge sheet was filed before the JMFC, Gariyadhar. As the case was triable by the Sessions Court, under Section 209 of CR.P.C. the same was committed to Sessions Court. 4. The offences committed by the accused persons were exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions Judge, Bhavnagar and the same was allotted to the learned 3rd Additional Sessions Judge, Bhavnagar for trial and numbered as Special Atrocity Case No. 12 of 2014. The respondents have not pleaded guilty to the charges levelled against them and claimed to the tried. Before trial court the prosecution has examined Complainant, Panch witnesses and police witnesses who were supporting the case of prosecution. 5. In order to bring home the offence alleged against the respondent, the prosecution adduced oral and documentary evidence as under:- Oral Evidence:- Sr. No. Details Exhibit 1 Receipt of Muddamal 2 2 Charge 7 3 Deposition of Witness no. 1 - Kalubhai Tejabhai 11 4 Deposition of Witness no. 2 – Dr. Kalpnaben Harshadbhai 17 5 Deposition of Witness no.3 – Laljibha Hakabhai 23 6 Deposition of Witness no.4 – Hakabhai Nathubhai 28 7 Deposition of Witness no.5 – Govindbhai Lakhmanbhai 32 8 Deposition of Witness no.6 – Jaysukhbhai Mohanbhai 34 9 Deposition of Witness no.7 – Pravinbhai Hakabhai 35 10 Deposition of Witness no.8 – Narendrasinh Popatbha 37 11 Deposition of Witness no.9 – Harsurbhai Becharbhai 43 12 Deposition of Witness no.10 – Jasubhai Naranbhai 44 13 Plea/Further Statement of accused no. 1 – Mehurbhai Kanabhai 8 14 Plea/Further Statement of accused no. 2 – Shardulbhai Kanabhai 9 15 Plea/Further Statement of accused no. 3 – Mansurbhai Bholabhai 10 16 List of Documentary Evidences 5 17 Arrest Panchnama 12 18 Medical Certificate of Mansinhji Hospital Palitana 18 19 O.P. D. case paper of Lalji Hakabhai 19 20 Complaint of Laljibhai Hakabhai 24 21 Panchnama of the local place of incident 33 22 Station Diary 38 23 Fax Message forwarded by P.S.O. 39 24 Certificate of Scheduled Caste of the complainant. 45 25 Notification 46 26 Appointment Order issued by Superintendent of Police 47 27 Charge Sheet 1 Sr. 45 25 Notification 46 26 Appointment Order issued by Superintendent of Police 47 27 Charge Sheet 1 Sr. No. Documentary Evidence Exhibit Number 1 Complaint of Laljibhai Hakabhai 24 2 Appointment order done by the Police officer 47 3 Order to Dy.S.P. By P.S.O. 40 4 Fax Message done by P.S.O. 39 5 Scheduled Cast Certificate of the complainant 45 6 Panchnama of place of incident 33 7 Arrest Panchnama 12 8 Medical Certificate of Mansinhji Hospital, Palitana 18 9 Notification 46 6. The learned Trial Judge upon hearing the learned A.P.P. and learned advocate for the defense and after analyzing the oral and documentary evidence, record and findings that the prosecution has failed to proved the case against the respondent beyond reasonable doubt and therefore, acquitted them under Section 235(1) of the Code, by his impugned judgment and order dated 29.09.2014. 7. The appellants-State being aggrieved by and dissatisfied with the impugned judgment and order dated 29.09.2014 hence, has preferred this appeal. 8. I have heard Ms. Monali H. Bhatt, learned A.P.P. for the appellant. Mr. S.M. Kikani, learned advocate for the respondents. 9. Ms. Bhatt, learned A.P.P. has vehemently submitted that the learned Trial Judge has erred in acquitting the respondents on the ground that there are contradiction in the evidence of witnesses. She submits that the show-called contradictions are minor which do not materially affect the prosecution case against the respondents. She therefore, urges that the appeal may be allowed and respondent may be convicted. 10. The scope of the acquittal appeal under Section 378(1)(3) of the Code is limited. The Supreme Court in the case of Sadhu Saran Singh vs. State of Uttar Pradesh, (2016) 4 SCC 357 , have explained this court of acquittal appeal in paragraph 20 as under: "20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held: 7. "The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal, are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal."" 11. This court will have to examine the evidence adduced by the prosecution and the evaluations of the evidence done by the learned Trial Judge keeping in mind, the aforesaid proposition of law, as regards the scope of the acquittal appeal. 12. The evidence of complainant Lalji Hakabhai Gohil (PW-3) and the evidence of Hakabhai Nathubhai Gohil (PW-4) - Father of the complainant is contradictory so far as the offending words alleged to have been spoken by the respondents. It further appears from the complaint and the evidence of these two witnesses that when the PW-3 - Original complainant was beaten and abused by the respondents, no other person was present there. If the prevention of Section 3(1)(x) of the Atrocity Act is seen the basic and essential requirement is that the persons belonging to reserved category have to be humiliated within public view. Overall reading of the complaint as also the evidence of material witnesses does not reveal that the respondent had humiliated the complainant in presence of other members of the public and therefore, it cannot be said that the respondent had committed offence under Section 3(1)(X) of the Atrocity Act. 13. Overall reading of the complaint as also the evidence of material witnesses does not reveal that the respondent had humiliated the complainant in presence of other members of the public and therefore, it cannot be said that the respondent had committed offence under Section 3(1)(X) of the Atrocity Act. 13. So far as the injury suffered by the PW-3 - Original Complainant is concerned, it is the say of the complainant that he was beaten by the respondents on various parts of his body. According to him, respondent No. 1 Mehurbhai Kanabhai Dhandhal had haphazardly gave blows on his thigh by stick whereas respondent No. 3 had caused injury on his right hand by axe whereas other had given stick blows. He also states that he had suffered injury on his private part but did not disclose it at the time of treatment as he was treated by a lady doctor. The injuries narrated by the complainant in his oral evidence were not narrated by the PW-2 - Dr. Kalpana Chauhan in her oral evidence (Exh. 17). It emerges from the evidence of the doctor that the complainant had suffered injuries only an abrasion of his left thigh and left hand and no other injuries were found on any other parts of the body. As the injuries suffered by the complainant were simple, he was given OPD treatment. Thus, it is obvious that there is a contradiction between the oral evidence and medical certificate as regards the injuries suffered by the complainant. 14. Moreover, the complaint was lodged late i.e. two days later in as much as the incident had taken place on 19.10.2013 and the complaint in respect of the incident was lodged on 21.10.2013. The complainant has not given any explanation for lodging the complaint late by two days in the complaint though he has tried to explain delay in his oral evidence by stating that he had to take indoor treatment for one and half days. This statement of the complainant cannot be believed because the evidence of doctor PW-2 reveals that the complainant was given OPD treatment. Hence, in absence of any satisfactory evidence for causing delay of around two days for lodging complaint case of the prosecution becomes highly doubtful and in my opinion that the benefit thereof should go to the respondents. 15. This statement of the complainant cannot be believed because the evidence of doctor PW-2 reveals that the complainant was given OPD treatment. Hence, in absence of any satisfactory evidence for causing delay of around two days for lodging complaint case of the prosecution becomes highly doubtful and in my opinion that the benefit thereof should go to the respondents. 15. The perusal of the impugned judgment and order of acquittal makes it manifestly clear that the learned Special Judge has assigned cogent and convincing reasons to acquit the respondents and the view adopted by the learned Special Judge is plausible view which does not warrant any interference in this appeal. 16. Moreover, the evidence of the witnesses contains contradictions which, according to my opinion, go to the root of the prosecution story and therefore, it cannot be said that the prosecution has proved the case against the respondents beyond reasonable doubt, for having committed offences punishable under Sections 323, 352, 427, 504 and 114 of the I.P. Code and Section 135 of G.P. Act as well as Section 3(1)(X) of Atrocity Act. 17. The incident is alleged to have taken place in lane where many houses are located and people are residing. Thus, to bring home the case against the respondents for having committed an offence under Section 3(1)(X) of the Atrocity Act, the prosecution has to prove that the accused persons had called the complainant and the witnesses if any, by names so as to humiliate them within public view. The evidence of the witnesses does not reveal that when the respondents utter the offending that the respondents had uttered the offending words in presence of other persons and thereby the complainant was humiliated within public view. 18. I am therefore of the opinion that the prosecution has also failed to bring home the charge of Section 3(1)(9) of the Atrocity Act against the respondents beyond reasonable doubt. 19. The view and reasons adopted by the learned Trial Court is plausible and reasonable which cannot be substituted by another plausible and reasonable vies of this court. The appeal therefore lacks merits. 20. For the foregoing reasons, the appeal fails and hereby dismissed. 21. I am therefore, of the view that the reasons and findings recorded by the learned Trial Judge to acquit the respondent cannot be said to be perverse or illegal. The appeal therefore lacks merits. 20. For the foregoing reasons, the appeal fails and hereby dismissed. 21. I am therefore, of the view that the reasons and findings recorded by the learned Trial Judge to acquit the respondent cannot be said to be perverse or illegal. As a result, the impugned judgment of acquittal does not warrant any interference in this appeal. 22. For the foregoing reasons, the appeal fails and is hereby dismissed, judgment and order of acquittal dated 29.09.2014 recorded by the learned Fast Track Court, Bhavnagar in Special Atrocity Case No. 12 of 2014 is hereby confirmed. 23. R & P is ordered to be remitted to the trial Court to the forthwith.