Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 138 (GUJ)

STATE OF GUJARAT v. RASIKABHAI MANUBHAI BHADANI

2018-01-16

SONIA GOKANI

body2018
JUDGMENT : 1. With the consent of the learned Advocates for the parties, this matter is takenup for final hearing at the admission stage. 2. The appellant-State has preferred this appeal being aggrieved by the judgment and order of acquittal, Dated: 14.02.2017, passed by the learned 3rd Additional Special Judge (Atro.), Amreli (for short, ‘the trial Court’), in Special (Atrocity) Case No. 25 of 2013, whereby, it acquitted all the accused of the offence punishable under Sections 114 of the Indian Penal Code, 1860, and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘the Atrocities Act’, in brief). 3. The brief facts of the case of the prosecution are that the original complainant, namely Vinubhai Govindbhai Solanki, resides at Vilalge” Bhingrad along with his family. He does labour work and also assumes the charge of office as a Sarpanch since 07.03.2013. 3.1 It is, further, the case of the prosecution that on 20.03.2013, at about 11:00 a.m., a meeting was organized by the Sarpanch and the members at the Village Panchayat Office, Bhingrad for constitution of a committee and passing of budget. When the complainant along with one Mansukhbhai Shambhubhai Ramavat entered the office of the Village Panchayat, they found that Mantri was sitting in the chair of Sarpanch and a wooden chair was placed in a corner, where, the first informant was asked to sit by the talati-cum-mantri. When the complainant inquired as to why he should sit at a distance? He was replied by the Talati-cum-mantri that he becomes unholy as he himself is belonging to superior caste and he belongs to the Scheduled Caste. Further, one Raskibhai Manubhai Bhadani, who was Vice-Sarpanch, and Bharat Ravjibhai Patel, who were sitting there in connivance of the Mantri told that in their office no one should be from the Scheduled Castes. It is the case of the complainant that he felt insulted by the act of the accused, as they had uttered insulting words about his caste. It is, further, the case of the prosecution that the respondents- accused did not endorse the budget and thus, the first informant, who was the Sarpanch, acted bona fide and just because he belonged to the Scheduled Castes, the budget was not allowed to be passed. It is, further, the case of the prosecution that the respondents- accused did not endorse the budget and thus, the first informant, who was the Sarpanch, acted bona fide and just because he belonged to the Scheduled Castes, the budget was not allowed to be passed. 3.2 After the complaint was lodged by the first informant, the Investigating officer carried out investigation and filed charge-sheet before the Court of the Judicial Magistrate, First Class, Lathi and the same was numbered as Criminal Case No. 117 of 2013. However, since, the learned JMFC had no power to conduct the matter, the case was committed before the Sessions Court, Amreli, under Section 209 of the Criminal Procedure Code, 1973 (for short, ‘the Code’) and it was renumbered as Special (Atrocity) Case No. 25 of 2013. 3.3 To bring home the charge levelled against the respondent-accused, the prosecution examined the following witnesses: PROSECUTION WITNESS NUMBER NAME OF THE WITNESS EXHIBIT NUMBER 1 Vinubhai Govindbhai Solanki, the complainant 13 2 Mansukhbhai Shambhubhai Ramavat (Witness) 24 3 Manjibhai Lakhmanbhai Parmar (Witness) 25 4 Dilipsinh Mahipatsinh Gohil (Witness) 27 5 Samatbhai Jodhabhai Jograna (Witness) 29 6 Pravinbhai Savjibhai Solanki (Witness) 30 7 Dinsehbhai Lakhmanbhai Parmar (Witness) 31 8 Vajubhai Kanubhai Italia (Panch Witness) 34 9 Ghanshyambhai Nagjibhai Radadia (Panch Witness) 36 10 Maheboobbhai Multufabhai Malek (IO) 37 DEFENCE WITNESS 1 Hetalben Vinodbhai Maru (Witness) 46 3.4 Over and above the oral evidence, the prosecution also adduced the following documentary evidences to substantiate its case: DOCUMENTARY EVIDENCE NUMBER PARTICULARS EXHIBIT NUMBER 1 Complaint 14 2 Caste certificate 28 3 Panchnama of place of offence 32 4 Arrest panchnama of the accused 35 5 Resolution book of village Panchayat 38 6 Letter written to the Taluka Development Officer for the information of Talati-cum-Mantri of Bhingrad Village Panchayat and its related xerox of extract of resolution book 39 7 Certified copy of report of offence 40 8 Order of investigation 41 9 Wireless message 42 10 Letter 42 Document Produced by the defence: 1 Certified copies of resolution of village panchayat 47 3.5 In the further statement recorded under Section 313 of the Code, all the respondents accused denied incriminating evidence and stated that a false case is being foisted upon them. 4. The trial Court after hearing both the sides acquitted all the accused of the charges framed against them. Therefore, the present appeal by the appellant-State. 5. 4. The trial Court after hearing both the sides acquitted all the accused of the charges framed against them. Therefore, the present appeal by the appellant-State. 5. It is the say of the appellant that the learned Special Judge failed to appreciate the categorical version of the complainant and the treatment meted out to him. Other prosecution witness also supported his case by signing the budget, which had heavily weighed with the Special Court. It is, further, his say that considering the overall facts and circumstances, the Court did not correctly appreciate that the accused had not committed the offence and hence, the judgment and order being illegal and improper deserve interference. It is, further, his say that the impugned judgment and order of acquittal passed by the trial Court has resulted in the serious miscarriage of justice, and therefore, with the evidence available on record, the judgment and order of the trial Court deserves to be quashed and set aside. 5.1 It is further argued that the reasonings are not palatable and are unreasonable and shaky. The trial Court ought to have recorded the well laid down law to convict the accused persons. It is, further, urged that the paramount consideration of the Court is to see that the miscarriage of justice is avoided. While acquitting and the accused the learned trial Judge exercised the powers conferred on him without appreciating and considering the import of applying of the law to the facts of the case on hand. It is, further, his say that the well settled legal position is also not regarded that evidence of the a single witness is sufficient for recording conviction, if, otherwise, found reliable and trustworthy. Some minor omissions and contradictions in the case of prosecution cannot fail the entire case and the same has, thus, resulted into miscarriage of justice. It is, therefore, urged that the appeal be admitted. 6. This Court has heard the learned Additional Public Prosecutor, Mr. Raval, for the Appellant-State, who made his submissions fervently and urged that the Presiding Officer does not preside for the trial only to see that no innocent person is punished, in fact, it is also his duty to see that the guilty must be punished, as well. 6. This Court has heard the learned Additional Public Prosecutor, Mr. Raval, for the Appellant-State, who made his submissions fervently and urged that the Presiding Officer does not preside for the trial only to see that no innocent person is punished, in fact, it is also his duty to see that the guilty must be punished, as well. It is, further, his say that oral as well as documentary evidences on record cumulatively go to point out clearly the single focal point that the complainant and other supporting the case have spoken of the contravention of the provisions of the Atrocities Act and yet, the trial Court concerned has disregarded such unequivocal version. 7. Learned Advocate, Ms. Taruna Makwana, appearing for Respondent No.6-the original complainant through legal aid also argued along the line of the memo of the appeal and the submissions made by the learned APP. She urged that all the accused are the members of the Village Panchayat Committee, who were also to cast their votes with regard to the passing of budget estimates of the Panchayat and they voted against the same. Thus, when the budget estimates could not be passed in that circumstances, the entire panchayat body would, automatically, was to be superseded. She, therefore, urged that the appeal deserves to be allowed. 8. Learned Advocate, Mr. Kasvala, appearing for original accused-Respondent Nos. 1,2, 4 and 5, herein, whereas, learned Advocate, Mr. Vaghela, appearing for original accused- Respondent No.3, herein, also have been heard. 8.1 According to them, the village panchayat consisted of 7 members and out of them 6 members had continued, whereas, one seat reserved for Scheduled Castes community was vacant. The meetings of the Sarpanch and those of the members were being held regularly and one such meeting was held on 20.03.2013 for passing the budget, which led to this dispute. It was urged that nothing, what has been stated in the complaint, had happened and it is only when, they refused to endorse the budget that the entire case is concocted against them. It is also urged that those of them from the management, who have supported the budget, no complaint has been filed against them, namely against members Shri. Parsottambhai Kalubhai Aasodaria and Shri. Samatbhai Jodhabhai Jograna. It is also urged that those of them from the management, who have supported the budget, no complaint has been filed against them, namely against members Shri. Parsottambhai Kalubhai Aasodaria and Shri. Samatbhai Jodhabhai Jograna. 8.2 It is, further, their say that it is only after once the meeting was over and the budget was not passed with the first informant complained against the original accused- Respondents, herein. The persons, who voted against the budget are (1) Ramilaben Rajnibhai Sohalia, (2) Prabhaben Kiritbhai Ambalia, (3) Rasikbhai Manubhai Bhadani, (4) Bharabhai Ravjibhai Sohaliya and (5) Chandulal Tribhovanbhai Pandit. It is, therefore, their say that the trial Court, after due appreciation of the entire evidence, oral as well as the documentary, rightly reached to the conclusion that no case is made out for proving the offence under Section 3(1)(x) of the Atrocities Act read with Section 114 of the IPC. 9. In rejoinder, it is urged by the learned APP that after admitting the appeal, the Court can appreciate the evidence at length and it would also be necessary to call for the records and proceedings for the better appreciation, as to why the judgment and order of the trial Court deserves interference. 10. This Court notices, upon hearing both the sides and on perusal of the record, that the prosecution examined as many as 10 witnesses to support the allegations made against the original accused-Respondents, herein. The documentary evidence, which have been relied upon by the prosecution, have also been detailed at Paragraph-4 of the judgment by the trial Court. The defence also had summoned a witness and produced certified copies of the resolutions of the village panchayat. 10.1 It may be noticed that the trial Court after culling out the points for determination on each issue, has given the detailed reasoning. The Court after overall consideration of the evidences, oral as well as documentary, adduced by the prosecution, concluded that this was a complaint filed with a prejudicial mind, where, the complainant had suppressed the material facts before the IO so also before the trial Court. The Court also reached to the conclusion that because of non-passing of the budget of the village panchayat that the present complaint is filed against involving those, who did not endorse the budget floated by the Sarpanch, i.e. the complainant, himself. The Court also reached to the conclusion that because of non-passing of the budget of the village panchayat that the present complaint is filed against involving those, who did not endorse the budget floated by the Sarpanch, i.e. the complainant, himself. He also tried to pressurize the body of the Members to support him and when that failed, he used the law as a weapon. 10.2 The trial Court, relying on the various decisions so far as the law on the subject is concerned, concluded that evidence produced by the prosecution created serious doubt with regard to the basis and root of the incident and by a detailed order, while referring to the decision of the Apex Court in ‘SUCHA SINGH AND ANOTHER VS. STATE OF PUNJAB’, (2003) 7 SCC 643 , and in ‘DHIREN PRAFULBHAI SHAH VS. STATE OF GUJARAT’, 2016 (4) GLR 2785 , held and concluded that the action on the part of the complainant is nothing but an attempt to misuse the provisions of the Atrocities Act. The trial Court, therefore, gave benefit of doubt to all the accused-respondents. 10.3 Here, profitable it would be to refer to the provisions of Section 116 of the Gujarat Panchayats Act, 1993, which reads thus: “116. ANNUAL BUDGET ESTIMATES.- (1) Every village panchayat shall have prepared annually on or before the 15th December of the current year or such date not later than 31st December of the current year as may be approved by the taluka panchayat, in such form and manner as may be prescribed in this behalf a budget estimate of its income and expenditure for the next year and forward the budget estimate to the taluka panchayat on or before- (a) the 31st December of the current year where the budget estimate is prepared on or before the 15th December of the Current year, or (b) the 15th January of the current year where the budget estimate is prepared on or before the approved date: Provided that the budget estimate shall be so prepared that at the end of the year the panchayat shall have at its credit a balance of not less than such minimum amount as may be prescribed in that behalf. (2) The taluka panchayat shall scrutinize the budget estimate and return to the panchayat within two months of its receipt with such observation and recommendation as it may make in respect of the budget estimate. (3) The panchayat shall thereupon approve the budget estimate on or before the 31st March of the current year with such modifications as it may thing fit having regard to the observations and recommendations made by the taluka panchayat under sub-Section (2). (4) Where any village panchayat has failed t comply with the provisions of sub-section (3), it shall be lawful for the State Government to form an opinion that the panchayat is incompetent to perform the duties imposed on it or functions entrusted to it under the provisions of this Act.” 10.4 Thus, the above provisions makes it obligatory that every village panchayat shall prepare annually on or before 15th December of the current year or such date but not later than 31st December of the current year, the budget estimates of its income and expenditure for the current year and forward the same to the Taluka Panchayat on or before 31st December of the current year. Where, the budget estimate is prepared on or before the 15th December of the current year or 15th January of the current year, where the budget estimate is prepared on or before the approved date. Sub-Section (3) of Section 116 of the Panchayats Act, makes it incumbent on the panchayat to make the budget estimates on or before 31st March of the current year with such modifications as it may deem fit having regard to the observations and recommendations made by Taluka Panchayat under sub-Section (2) of Section 116 of the Panchayats Act is to scrutinize the budge estimates and returns the same to the Panchayat within two months of its receipt with such observations and recommendations as in respect of the budget estimate it may make. In the event of any village panchayat’s failure to comply with the provisions of sub-Section (3) of Section 116 of the Panchayats Act, the State Government would be within its right to form an opinion that the panchayat is incompetent to perform the duties imposed on it or functions entrusted to it under the provisions of this Act. In the event of any village panchayat’s failure to comply with the provisions of sub-Section (3) of Section 116 of the Panchayats Act, the State Government would be within its right to form an opinion that the panchayat is incompetent to perform the duties imposed on it or functions entrusted to it under the provisions of this Act. In the event of Taluka Panchayat not complying with sub-Section (2) of Section 116 of the Panchayats Act, the village panchayat would be deemed to have failed to comply with the provisions of sub-Section (3) of Section 116 of the Panchayats Act. 10.5 This appears to be the root cause of the dispute in the case on hand. It is the prerogative of the Sarpanch to call the meeting for preparing the budget estimates. In the instant case, it was already prepared and sent to the Taluka Panchayat. After getting feedback from the Taluka Panchayat with necessary observations and recommendations, the village panchayat needed to approve the budget estimates on or before 31st March of that particular year with such modifications, which it may deemed necessary, in wake of the observations and recommendation of the taluka panchayat. 10.6 It appears from the Minutes Book that the Resolution No. 42 was passed on 20.03.2013, which speaks of the presence of the members of the panchayat, which included the present respondents. In the said meeting, five persons voted against the budget, namely (1) Ramilaben Rajnibhai Sohalia, (2) Prabhaben Kiritbhai Ambalia, (3) Rasikbhai Manubhai Bhadani, (4) Bharabhai Ravjibhai Sohaliya and (5) Chandulal Tribhovanbhai Pandit, whereas, three persons, including the Sarpanch, who is also the complainant, voted in favour of the budget estimates. It appears that three times, i.e. upto 31st March of the current year, the budget estimates could not be passed. 10.7 First such meeting was held on 20.03.2013, whereas, the second such meeting was held on 25.03.2013, which also resulted in not clearing the budget estimates. Since, the budget estimates could not be approved, another attempt was made to get the same approved before 31.03.2013, a meeting was called on 30.03.2013. With a positive note that this meeting had been called at the residence of the Sarpanch. It appears that to ensure that the meetings gets over peacefully and the law and order situation is not affected, necessary strength of the security personnel was also called for. With a positive note that this meeting had been called at the residence of the Sarpanch. It appears that to ensure that the meetings gets over peacefully and the law and order situation is not affected, necessary strength of the security personnel was also called for. A letter to that effect was also given to the Taluka Panchayat on 20.03.2013. Total 7 members had remained present, which is otherwise sufficient number of the coram, in the presence of the PSI and other staff members, including, those, who were named as accused in the complaint. The matter proceeded and out of 7 members, 5 members continued not to support the budget, whereas, the three members voted in favour of the budget estimates for the year 2013-14. 10.8 In the aforesaid backdrop of facts, the complaint, for the first time, was given by the complainant on 20.03.2013 and thereafter, on 24.03.2013, which shall have to be viewed closely. It is also a matter of record that in the subsequent complaint given on 24.03.2013, there is no reference of the earlier complaint of 20.03.2013. It may be noted that the IO also was not asked anything about the same, at the time of his cross-examination in the Sessions trial, as to why the complaint dated 20.03.2013 was not registered as an FIR. The fact remains that the complaint is given on the eve of the second meeting, which was scheduled to be held on 25.03.2013. The outcome of the first meeting held on 20.03.2013 was known to one and all that the budget proposal was not approved by majority of the members. Thereafter, once again, on 30.03.2013, the meeting was held, where again, all the 7 members remained present and the complainant-Sarpanch conducted the meeting, where, the scenario continued to remain to be the same, where, 5 members chose not to support the budget estimates, whereas, three members voted in favour of the budget estimates for the year 2013-14. Thereafter, once again, on 30.03.2013, the meeting was held, where again, all the 7 members remained present and the complainant-Sarpanch conducted the meeting, where, the scenario continued to remain to be the same, where, 5 members chose not to support the budget estimates, whereas, three members voted in favour of the budget estimates for the year 2013-14. 10.9 Considering the provisions of Section 116 of the Panchayats Act, which makes it obligatory on the part of the panchayat to pass budget estimates on or before 31st March of the current year and in the event of the failure to so do, as per provisions of sub-Section (3) of Section 116 of the Panchayats Act, the State Government would be well within its right to form an opinion that the concerned panchayat is incompetent to perform the duties imposed on it or functions entrusted to it under the provisions of this Act. This would bring an end not only to the term of the Sarpanch but also of all the members. 10.10 With these details, which have come to the fore, from the deposition of the complainant, himself, and of other members coupled with the evidence of the defence witness and the Minutes Book, which reflected various resolutions and the minutes of the panchayat meetings, the trial Court has held that the attempt on the part of the complainant was only to misuse the provisions of the law for pressurizing the members of the panchayat to vote in favour of the budget estimates, which was necessarily to be passed on, or before, 31st March of the current year. This view expressed by the trial Court on due appreciation of the evidence, oral as well as documentary, when is found feasible, there is no requirement for the appellate Court to form a distinct and separate opinion from the very set of evidence. It is quite feasible, considering the chronology of events that in a desperate move to get the budget estimates passed and to save the office and the term of the Sarpanch, the complainant, first informant, chose to exercise his powers to pressurize the members. 10.11 This can be looked at even from another angle. It is quite feasible, considering the chronology of events that in a desperate move to get the budget estimates passed and to save the office and the term of the Sarpanch, the complainant, first informant, chose to exercise his powers to pressurize the members. 10.11 This can be looked at even from another angle. This act of non-passing of the budget estimates for the current year was to result into State Government choosing to end the terms of the panchayat holding it incompetent to function in the essential tasks given to panchayat. This was necessarily to even end the terms of those members, who chose not to support the resolution, and therefore, they very well knew that their own act would act against them in ending their own terms in the panchayat. This also is one of the reasons for the Court to bear in mind because, had the act been out of the vengeance towards the complainant as alleged by the prosecution, their non support of the budget estimates in fact had placed, their own term of office as member of the panchayat also at peril. Moreover, it is also quite glaringly significant to note that those of them, who supported the budget estimates, as per the minutes book, do not face any prosecution and that aspect also is not insignificant, which would go in a large way to support the findings, which have been arrived at by the trial Court in holding against the case of the prosecution. Further, in the cross-examination of the complainant, he has been alleged of having acted as per the guidance of one Shri. Mansukhbhai Shambhubhai Ramavat-PW-2, who is a friend of the complainant and against whom 12 complaints were already filed. This witness also agreed that at the time of meetings held on 26.03.2013 and 30.03.2013, police personnels were present and the videography of the proceedings of the meeting was also done. 10.12 The provisions of Section 3(1)(x) of the Atrocities Act would deserve reference at this stage, which reads thus: 3.(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- ... 10.12 The provisions of Section 3(1)(x) of the Atrocities Act would deserve reference at this stage, which reads thus: 3.(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- ... (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;” 10.13 The utterances from the accused of the words at the public places in the presence of the other persons, which would humiliate, insult the complainant would be a must. The respondents are also alleged of abetment under Section 114 of the IPC, which speaks of the punishment to an abettor, who also can be liable to be punished in his absence, if otherwise, present when the act or offence for which he would be punishable in consequence of the abetment is committed. He would be deemed to have committed such an act or offence. 10.14 Considering the allegations of the insult by the complainant and his alleged humiliation at a public place, at the hands of the respondents-accused, and the allegations of the abetment in the act of insult, whereby, an attempt was made to remove him from the office of the sarpanch, this Court finds absolutely no requirement to interfere with the findings and conclusion arrived at by the trial Court, in the backdrop of facts established on record as discussed herein above. 15. Resultantly, this appeal fails and is DISMISSED. The judgment and order passed by the learned 3rd Additional Special Judge (Atro.), Amreli, Dated: 14.02.2017, in Special (Atrocity) Case No. 25 of 2013, acquitting all the accused is CONFIRMED. R&P be sent back to the trial Court concerned, FORTHWITH.