Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 492 (GUJ)

Ajaysinh Rajendrasinh Zala v. State of Gujarat

2019-04-29

R.P.DHOLARIA

body2019
JUDGMENT : 1. The appellant has preferred the present appeal under Section 374 of the Code of Criminal Procedure against judgment and order dated 24.04.2018 passed by learned Special Judge and 3rd Additional Sessions Judge, Nadiad in Special Atrocity Case No. 1 of 2017, convicting him for the offence punishable Sections 323, 504 of the Indian Penal Code and Sections 3(1) (R)(S) and 3(2)(5-A) of the Prevention of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. As per the prosecution version, the complainant – Manubhai Vaghela was the Manager of the Transport Company run by Prosecution witness No.3 – Bipinchandra Malkana. It is the case that on 10.09.2015 at about 11.00 AM, the complainant visited the Police Station at Kheda for lodging the complaint in respect of theft of gas cylinders, where the appellant – accused was holding the post of Police Sub Inspector and at that time, as there were some altercations in respect of lodging the complaint between the accused and the complainant, the accused uttering derogatory words concerning the caste & community of the complainant, assaulted him over his face, head and chest by giving 15-20 kick & fist blows. Thereby, the appellant – accused committed an offence punishable under Sections 323, 504 of IPC and Sections 3(1)(R)(S) and 3(2)(5-A) of the Atrocities Act. 3. Investigation was carried out and charge-sheet came to be filed against the accused in the Court of learned Magistrate. As the case was triable by learned Sessions Court, the same was committed to the Court of learned Sessions Judge. Thereafter, the charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 3.1 In order to bring home the charges against the accused, the prosecution examined the witnesses and produced the documentary evidence. 3.2 Thereafter, after filing of closing purshis by the prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case is filed against him. 3.3 At the conclusion of trial and after appreciating evidence on record, the learned trail court delivered the impugned judgment. The accused denied the case of the prosecution and submitted that a false case is filed against him. 3.3 At the conclusion of trial and after appreciating evidence on record, the learned trail court delivered the impugned judgment. Being aggrieved by said judgment and order dated 24.04.2018 passed by learned Special Judge and 3rd Additional Sessions Judge, Nadiad in Special Atrocity Case No. 1 of 2017, the appellant has preferred the present appeal before this Court. 4. Learned advocate Mr. Ruturaj Nanavati for the appellant – accused has taken this Court through the entire record & proceedings and argued that the genesis of the case itself is not getting proved as the appellant had already registered the complaint of theft which came to be lodged by the complainant. He has further argued that the allegation as regards the assault over the person of the complainant by the present appellant is not getting any corroboration either from the medical evidence or from the evidence of independent witnesses who had been examined by the prosecution and consequently therefore, the entire testimony of the complainant becomes doubtful according to his submission. He has also argued that no ingredients for the offence punishable under the provisions of the Atrocities Act have been constituted as none of the eye-witnesses to the incident had testified before the Court that the appellant uttered derogatory words concerning the caste & community of the complainant. 4.1 Learned advocate for the appellant – accused has argued that the complainant wanted to lodge the complaint of theft of 40 gas cylinders, though there was in fact actual theft of 4 gas cylinders only and when the official subordinate to the appellant was not convinced to the factual inquiry, the complainant created ruckus in the police station and consequently therefore, the complaint was lodged for the offence punishable under Section 186 of IPC against the complainant. Learned advocate has further argued that keeping grudge against the appellant, as a counter blast, the complaint invoking the provisions of the Atrocities Act came to be lodged. He has also argued that even the complaint came to be lodged after about a week. 5. On the other hand, learned Additional Public Prosecutor Ms. Hansa Punani for the respondent – State of Gujarat has supported the judgment and order of conviction of the learned trial court. He has also argued that even the complaint came to be lodged after about a week. 5. On the other hand, learned Additional Public Prosecutor Ms. Hansa Punani for the respondent – State of Gujarat has supported the judgment and order of conviction of the learned trial court. Learned APP has argued that the learned trial court while answering the points of determination, appropriately appreciated the evidence on record and rightly convicted the appellant – accused. Learned APP has further argued that the say of the complainant is also getting corroboration from the medical evidence as the complainant clearly gave history as regards the incident before Dr. Dineshkumar Madhukar and in that view of the matter, the learned trial court, placing reliance upon such evidence, rightly convicted the appellant – accused, which calls for no interference. 6. Learned advocate Mr. Valimohammed Pathan for the respondent – original complainant has argued that as the appellant – accused was holding the position of Police Sub Inspector, he misused his position and took the law in his hand by assaulting and abusing the complainant. He has argued that the say of the complainant is fully getting corroboration from other evidence on record as well as medical evidence. He has further argued that the learned trial court rightly dealt with the evidence on record and rightly convicted the appellant – accused. Ultimately, he has urged to dismiss the appeal. 7. This Court has minutely gone through the entire record & proceedings, impugned judgment and order as well as evidence of material witnesses. 8. Prosecution witness No.1 – Manubhai Vaghela – the complainant deposed that he was serving as Accountant in the BBCL Company. He deposed that as it was reported by driver – Ashokbhai that 4 gas cylinders were stolen by somebody, he visited Kheda Town Police Station for lodging the complaint. He deposed that at that time, there was initial conversation with the PSO of the said Police Station and thereafter, the appellant – accused by calling him in his chamber told not to teach the law as also assaulted him by giving 15-16 kick & fist blows on his face, head and chest. He deposed that at that time, driver – prosecution witness No. 2 – Ashokbhai and prosecution witness No.3 – Bipinchandra Malkan were also present and they were also assaulted. He deposed that at that time, driver – prosecution witness No. 2 – Ashokbhai and prosecution witness No.3 – Bipinchandra Malkan were also present and they were also assaulted. He also deposed that thereafter, the appellant – accused uttered derogatory words concerning his caste & community, due to which, he lodged the complaint and also addressed several letters concerning the incident to various authorities of the State. He also deposed that he made a written complaint on 15.09.2015. 9. Prosecution witness No. 2 – Ashokbhai Barreya – eye-witness to the incident as well as victim deposed that on 10.09.2015 on finding that 4 gas cylinders were stolen by somebody, he accompanied the complainant to the police station. He deposed that the complainant was called by the accused in his chamber and at that time, the accused straightway assaulted the complainant by giving 15-16 kick & fist blows over his person. He deposed that the accused also pushed him on sofa-set and also gave 5-6 kick & fist blows to him. He deposed that at that time, the complainant was shouting. In the cross-examination, he admitted that the police registered the complaint on 10.09.2015 for recovery of stolen gas cylinders. 10. Prosecution witness No. 3 – Bipinchandra Malkana – owner of the Transport Company deposed that on 10.09.2015, his driver apprised him about the theft of 4 gas cylinders and therefore, he along with the complainant and his driver had gone at Kheda Police Station for lodging the complaint. He deposed that the writer took them to the accused in his chamber and at that time, the accused assaulted the driver and thereafter, assaulted the complainant during which he intervened. 11. Prosecution witness No. 8 – Santoshkumar Singh who was serving at Civil Hospital, Kheda deposed that on 10.09.2015 at about 2.10 PM, the complainant consulted him for headache and he was treated as outdoor patient. In the cross-examination, he admitted that there were no external marks of injury over the person of the complainant and there was a complaint as regards the headache. He issued the certificate upon examination. 12. In the cross-examination, he admitted that there were no external marks of injury over the person of the complainant and there was a complaint as regards the headache. He issued the certificate upon examination. 12. Prosecution witness No. 9 – Dineshkumar Madhukar who was serving as Medical Officer at Nadiad Civil Hospital deposed that on 10.09.2015, the complainant came to be examined by him at about 3.30 PM and on asking the complainant, he gave the history that there was a theft of about 4 gas cylinders, due to which, he had gone to lodge the complaint at the police station where Police Sub Inspector Zala assaulted him on his face, head and chest by giving kick & fist blows. He deposed that upon examination of the complainant, his body was found to be normal and there were abrasions over his chest and left cheek. He deposed that the injuries were simple and superficial. 13. Prosecution witness No. 10 – Dineshbhai Vankar – PSO of Kheda Town Police Station – eye-witness to the incident deposed that the complainant was accompanied with two persons and they were shouting. He deposed that the appellant accused Zala had neither assaulted nor abused or uttered derogatory words concerning the caste & community. 14. Prosecution witness No. 11 – Shobhnaben Parmar – eye-witness to the incident has not supported the case of the prosecution. She clearly deposed that the appellant – accused had neither assaulted nor uttered the derogatory words concerning the caste & community. 15. Prosecution witness No. 12 – Kiransinh Rana deposed that on 10.09.2015, while he had gone for his work at the police station, the complainant was quarreling with the appellant accused and was insisting for showing the complaint of theft of 40 gas cylinders instead of 4 gas cylinders. He deposed that thereafter, the complainant perturbed and became anger upon the police official. He further deposed that the appellant – accused – Zala neither assaulted nor uttered any derogatory words concerning the caste & community. 16. Prosecution witness No. 13 – Yuvrajsinh Jadeja investigated the crime in question and after conclusion of investigation, filed the charge-sheet. In the cross-examination, he admitted that except Ashokbhai and Bipinbhai, none of the witnesses had stated before him as regards assault and uttering derogatory words concerning the caste & community of the complainant. 17. 16. Prosecution witness No. 13 – Yuvrajsinh Jadeja investigated the crime in question and after conclusion of investigation, filed the charge-sheet. In the cross-examination, he admitted that except Ashokbhai and Bipinbhai, none of the witnesses had stated before him as regards assault and uttering derogatory words concerning the caste & community of the complainant. 17. On overall evaluation of aforesaid evidence on record, the factual scenario emerging out is that the complainant was the accountant of the Transport Company and he wanted to lodge the complaint of theft of 40 gas cylinders instead of actual theft of 4 gas cylinders, due to which, initially, there were some altercations between the PSO of Kheda Police Station and ultimately, the matter reached upto the present appellant who was holding the post of Police Sub Inspector at Kheda Police Station at the relevant time. As the appellant refused to register the false complaint, the complainant, driver and owner of the transport company created ruckus in the police station in presence of prosecution witness Nos. 10 to 12 and others, due to which, the complaint came to be registered against the complainant for creating ruckus. As a counter blast to the aforesaid incident as emerging out from the record & proceedings, the complainant also addressed a written complaint after about a week and addressed several letters to the authorities of the State. Though the complainant was very much aware about the procedure that the complaint is to be lodged before the concerned police station, instead of doing so, he kept quite for about a week and thereafter, instead of lodging the complaint either before the competent authority having jurisdiction or before the Superintendent of Police at Kheda, he addressed letters to various authorities of the State inter alia alleging that he was beaten and insulted by uttering derogatory words concerning his caste & community. The say of the complainant is not at all getting any sort of corroboration from the evidence of independent witnesses Nos. 2, 3 and 10 to 12. The say of the complainant is not at all getting any sort of corroboration from the evidence of independent witnesses Nos. 2, 3 and 10 to 12. Consequently therefore, only the sole testimony of the complainant is available on record and that too, even soon after the incident, within four hours, the complainant voluntarily presented himself before the Medical Officer of Civil Hospital at Kheda, whereupon examination, no visible injury was found over his person and even he had not given any history of assault and instead, he complained about headache. Thereafter, on the same day, he visited the Civil Hospital at Nadiad and gave the history of assault over him which is also not at all getting any sort of corroboration from the depositions of both the doctors who had been examined by the prosecution. No visible injury was found over the person of the complainant. Not only that though prosecution witness Nos. 2 and 3 claimed that they were also assaulted, their say is not getting any sort of corroboration from the medical evidence as they were not physically examined nor they took any treatment from any medical practitioner. Since the complaint is lodged after about a week from the date of incident and the say of the complainant is not getting any sort of corroboration from the medical evidence though he came to be examined on the same day by two doctors, the offence under Sections 323 and 504 of IPC is not getting proved against the present appellant. 18. So far as the offence punishable under Sections 3(1)(R)(S) and 3(2)(5-A) of the Atrocities Act is concerned, except the bare words, nothing is revealing from the evidence of the prosecution witness No.2 and 3 that there was utterance of such words by the appellant accused. Prosecution witness Nos. 10 to 12 who were examined as independent witness had also clearly and categorically deposed that there was neither any assault by the present appellant nor utterance of derogatory words concerning the caste & community of the complainant. 19. In view of aforesaid nature of evidence, the prosecution miserably failed to link the appellant accused with the crime in question. The learned trial court wrongly relying upon the solitary testimony of the complainant, based his conviction which is not sustainable in law. 20. In the result, the appeal succeeds and the same is allowed. 19. In view of aforesaid nature of evidence, the prosecution miserably failed to link the appellant accused with the crime in question. The learned trial court wrongly relying upon the solitary testimony of the complainant, based his conviction which is not sustainable in law. 20. In the result, the appeal succeeds and the same is allowed. The impugned judgment and order dated 24.04.2018 passed by learned Special Judge and 3rd Additional Sessions Judge, Nadiad in Special Atrocity Case No. 1 of 2017 is quashed and set aside. The appellant – accused is acquitted of the charges levelled against him. Bail bond stands cancelled. Fine, if any, paid by him be refunded to him. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.