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Gujarat High Court · body

2019 DIGILAW 61 (GUJ)

Devang Surendra Patel v. State Of Gujarat

2019-01-24

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appeal has been filed by the appellant under Section 374 of the Criminal Procedure Code against the judgment and order dated 08.09.2000 passed by learned Special Judge, Court No.19, Ahmedabad in Atrocity Criminal Case No. 12 of 1999, which was tried for the offence under Sections 323, 506 of the Indian Penal Code (herein after referred to as IPC for short) and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“the Act” for short) against the appellant. By the impugned judgment, the appellant was acquitted for the offence under Section 3(1)(x) of the Act and Section 506 of IPC, however was held guilty for the offence under Section 323 of IPC and at the time of considering the imposition of sentence, the learned Special Court, instead of imposing any sentence, gave the benefit of probation under Section 360 of the Criminal Procedure Code and the Probation of Offenders Act. The appellant was directed to give bond of Rs.5000/- for good behavior and furnish a bail for the said amount. The appellant was further directed that he shall not commit any offence during the period of one year and shall maintain the peace. 2. As per the prosecution version, at the relevant time, the complainant was serving as Manager of State Bank of India, whereas present appellant-accused was serving as Clerk in I.O.R. Department. On 18.11.1998 at about 1.45PM, the accused took up a quarrel for peon and gave kick & fist blows on cheek and abdomen of the complainant and also uttered abusive words concerning the caste and community of the complainant. Thereby, the appellant committed an offence punishable under Sections 506 and 323 of the Indian Penal Code and Section 3(1)(x) of the 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 sessions triable, the same was committed to the Court of Sessions. 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 has examined witnesses and produced the documentary evidence. As the case was sessions triable, the same was committed to the Court of Sessions. 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 has examined witnesses and produced the documentary evidence. 3.2 Thereafter, after filing of closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has 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 the oral as well as documentary evidence, the learned Judge delivered the impugned judgment. Being aggrieved by and dissatisfied with the said judgment and order dated 08.09.2000 passed by learned Special Judge, Court No.19, Ahmedabad in Atrocity Criminal Case No. 12 of 1999, the appellant-accused has preferred the present appeal before this Court. 4. Learned senior advocate Mr. N.D. Nanavaty assisted by learned advocate Mr. Jayveek Bhatt for the appellant has taken this Court through the entire record & proceedings. He has argued that the entire case of the prosecution is rested on solitary evidence of the complainant and other witnesses have not supported the case of the prosecution. He has also argued that the evidence of three doctors who examined the complainant is also not in consonance with the medical evidence and therefore, the evidence of the complainant is not getting any sort of corroboration from the medical evidence and even the medical evidence clearly indicates that there was no visible external injury, no scar nor bruise on cheek and abdomen of the complainant. He has further argued that on the contrary, the medical evidence indicates that the complainant was suffering from bacterial infection, due to which, he was under ailment. He has further argued that on the contrary, the medical evidence indicates that the complainant was suffering from bacterial infection, due to which, he was under ailment. He has argued that none of the independent witnesses has supported the case of the prosecution and as regards the assault also, the learned trial court held that the incident in question appears to have happened in the toilet area and believing that something had happened, the learned trial court recorded its finding on the surmises and conjectures that such incident had happened due to which the complainant was sent to the hospital and taking that sort of moral view, the appellant came to be convicted. According to his precise submission, there appears no evidence except the solitary evidence of the complainant and that too, his testimony in the nature indicates that there was a union rivalry due to which he has wrongly implicated in order to settle the union rivalry, but that can't be ruled out. 5. On the other hand, learned APP has supported the judgment of learned trial court and has argued that the learned trial court, after appreciating the evidence on record, rightly delivered the judgment which calls for no interference. 6. This Court has minutely gone through the record & proceedings and the evidence of material witnesses. 7. Prosecution witness No.1-Ratilal Vanikar - the complainant, at the relevant time, was serving as Manager of State Bank of India, whereas the appellant-accused was serving as Clerk in I.O.R. Department. The complainant belongs to Vankar community falling under the category of Scheduled Caste. He deposed that on 18.11.1998 at about 1.45PM, he was proceeding towards toilet, at that time, the accused took up a quarrel for peon and gave kick & fist blows on his cheek and abdomen and also uttered abusive words concerning his caste and community. He deposed that therefore, he shouted for help and at that time, prosecution witness No.2 - Prakash Baxi rushed to the place of incident and rescued him. He deposed that thereafter, he was taken to the hospital and was admitted in the hospital for about 10 days. In the cross-examination, he admitted that there were two unions in the Bank, one union was representing the officers, whereas second union was representing the staff and he belonged to the union of officers and the appellant accused was the member of union of staff. In the cross-examination, he admitted that there were two unions in the Bank, one union was representing the officers, whereas second union was representing the staff and he belonged to the union of officers and the appellant accused was the member of union of staff. Though the complainant alleged as regards utterance of derogative words and assault by the accused, he refused the same in the cross-examination. 8. Prosecution witness No.2-Prakash Baxi - eye-witness to the incident had not supported the case of prosecution and was declared hostile to the case of the prosecution. 9. Prosecution witness No.3-Dr. Rajendra Shah deposed that at the relevant time, he was serving as Medical Officer in the Zonal Office of State Bank of India. He deposed that on 18.11.1998, he was present in the office and soon after the incident, immediately, he examined the complainant and at that time, the complainant told that he had pain in abdomen. He deposed that when he asked the complainant as regards the pain, at that time one Mr. Kanvar apprised that the accused-Devang Patel assaulted him. He deposed that while the complainant was examined, there was no external injury over his cheek or abdomen. He further deposed that thereafter, the complainant was sent to the V. S. Hospital. In the cross-examination, he admitted that when he examined the complainant in the chamber of D.G.M. and asked as regards the pain, the complainant merely stated that there was a pain on abdomen and jaw and except that he did not give any history. 10. Prosecution witness No.4-Dr. Pinakin Shah deposed that on 18.11.1998, he was serving as Registrar with Vadilal Hospital and he examined the complainant and there was no external injury. He deposed that the complainant was admitted as indoor patient and remained in hospital for about 10 days. He further deposed that the complainant was suffering from bacterial infection. 11. Prosecution witness No.5-Satyaprakash Mohanlal deposed that at the relevant time, he was serving as Regional Manager of State Bank of India. He deposed that when he asked the complainant, he told him that the accused assaulted him. He deposed that thereafter, union leader Shri Kadri arrived along with accused and other members of the union and the accused-Devang Patel complained that the complainant-Vanikar also assaulted him, but did not lodge the complaint as he had not received any serious injury. 12. He deposed that when he asked the complainant, he told him that the accused assaulted him. He deposed that thereafter, union leader Shri Kadri arrived along with accused and other members of the union and the accused-Devang Patel complained that the complainant-Vanikar also assaulted him, but did not lodge the complaint as he had not received any serious injury. 12. Prosecution witness No.6-Kantipuri Chhaganpuri-Assistant Commissioner of Police investigated the crime in question, drew panchanama and recorded the statements of the witnesses. 13. Prosecution witness No.8-Dr. Kamlesh Bhadreshwara deposed that at the relevant time, he was serving in the Surgical Department, V.S. Hospital and treated the complainant upto 28.11.1998. He deposed that there were problems of urine and latrine to the complainant. In his cross-examination, he admitted that in the examination of the complainant, neither any external nor internal injury was found. 14. On overall evaluation of aforesaid evidence on record, while delivering the judgment, the learned trial court clearly recorded that as per the prosecution case, the incident in question is alleged to have occurred in toilet area of the Bank which was not even in public view and consequently therefore, the offence under Section 3(1)(x) of the Act was not constituted and the accused came to be acquitted thereunder. As regards the assault as well as intimidation, on going through the entire record & proceedings and the complaint, no evidence is available on record except the evidence of prosecution witness No.2-Mr. Prakash Baxi - eyewitness to the incident who however had at all not supported the case of the prosecution. Furthermore, the prosecution also led the evidence that the treating doctor was apprised by DGM Mr. Kanvar as regards the injury and assault, but Mr. Kanvar is not examined by the prosecution. Indisputably, before all the three doctors, the present complainant had not given any history involving the present appellant that he assaulted him. Indisputably, the medical evidence which is at Exh. 27 in the nature of the injury certificate clearly indicates that on examination, there was no visible external injury, no scar nor bruise on cheek or abdomen of the complainant. Consequently therefore, as alleged by the complainant in his deposition that the present appellant gave kick & blows over his cheek and abdomen is not being established nor getting any sort of corroboration from the medical case papers. 15. As a result, this appeal is allowed. Consequently therefore, as alleged by the complainant in his deposition that the present appellant gave kick & blows over his cheek and abdomen is not being established nor getting any sort of corroboration from the medical case papers. 15. As a result, this appeal is allowed. The judgment and order dated 08.09.2000 passed by learned Special Judge, Court No.19, Ahmedabad in Atrocity Criminal Case No. 12 of 1999 is quashed and set aside. The accused-appellant is acquitted of the charges levelled against him. Since the appellant is on bail, he need not to surrender. The bail and bail bond, if any, stands cancelled. Surety, if any, shall stand discharged. Fine, if any, paid by the accused shall be refunded to him by the respondent-State. 16. Record and Proceedings be sent back to the trial Court concerned forthwith.