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2022 DIGILAW 22 (GUJ)

Vinodbhai v. State of Gujarat

2022-01-05

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. 1. Mr. Nalay Patel, learned advocate states that he has received instructions to appear for and on behalf of the respondent No. 2 and sought permission to appear on behalf of the respondent No. 2 and he shall file his Vakalatnama before the Registry. Permission; as sought for; stands granted. Registry shall accept the same. 2. Rule returnable forthwith. Learned advocate Mr. Nalay Patel waives service of notice of rule for and on behalf of respondent No. 2 and learned APP waives service of notice of rule for and on behalf of respondent-State. 3. By way of present application, applicant has prayed for following reliefs: A. YOUR LORDSHIPS may kindly be pleased to suspend the order of sentence and conviction and further be pleased to grant bail to the present applicant in connection with the judgment and order passed in Special Atrocities Case No. 16 of 2013 vide order dated 29.01.2021 passed by learned Special Judge (Atrocities) and Additional Sessions Judge, Rajula during the pendency and final hearing and disposal of the main appeal; B. Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case. 4. Heard learned advocate for the applicant, learned advocate for the respondent No. 2 as well as learned APP for the respondent-State. 5. It is submitted by learned advocate for the applicant that order of conviction passed by the learned Judge is contrary to the law and against the evidence available on record. That learned Judge has not properly appreciated oral as well as documentary evidences of the case available on record in its true and perspective. It is further submitted that learned Judge has committed serious error in not appreciating the aspect that there was previous animosity and enmity between the applicant and the complainant as well as appreciating the aspect that with a view to implicate the entire family, even the minors are shown as accused, though no specific roles are assigned to them. It is further submitted that learned Judge has committed serious error in not appreciating the medical evidence of the doctor stating that the injury of the patient Nathabhai was of simple in nature and that there was no injury on any vital part of the body. It is further submitted that learned Judge has committed serious error in not appreciating the medical evidence of the doctor stating that the injury of the patient Nathabhai was of simple in nature and that there was no injury on any vital part of the body. Under such circumstances, it can be a small self inflicted injury by falling on uneven surface, which is made sole ground for implicating the present applicant in the serious offence. Hence, it was requested by learned advocate for the applicant to allow present application. 6. Learned advocate appearing for the respondent No. 2 as well as learned APP appearing for the respondent-State have strongly objected the submissions made by learned advocate for the applicant submitting that applicant is a head strong person and several offences are registered against the present applicant. It is further submitted that after recording the evidence before the Sessions Court, the trial court has come to conclusion that offence was committed by the present applicant under Section 324 and Section 310 of Schedule Caste and Schedule Tribe, Prevention of Atrocities Act, 1989. That prosecution has clearly established against the present applicant, and therefore, no lenient view can be taken by this Court by suspending the sentence awarded by the Sessions Court in its order dated 29.01.2021 in Special Atrocities Case No. 16 of 2013 during the pendency of the appeal preferred by the present applicant. Hence, it was requested by learned advocate appearing for the respondent No. 2 as well as learned APP appearing for the respondent-State to dismiss this application. 7. Having heard learned advocates for the respective parties as well as learned APP for the respondent-State, it appears that present applicant is the original accused No. 1 convicted in Special Atrocities Case No. 16 of 2013 vide order dated 29.01.2021 by learned Special Judge (Atrocities) and Additional Sessions Judge, Rajula. The applicant was convicted under Section 324 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. It appears from the record that the learned Special Judge granted the benefit of probation of offenders act to present applicant, which was later on set aside by this Court in Criminal Revision Application No. 364 of 2021 vide judgment and order dated 27.10.2021 and at present applicant is behind the bar. It appears from the record that the learned Special Judge granted the benefit of probation of offenders act to present applicant, which was later on set aside by this Court in Criminal Revision Application No. 364 of 2021 vide judgment and order dated 27.10.2021 and at present applicant is behind the bar. As per the record, complaint was registered on 04.08.2013 for the offence punishable under Sections 324, 504, 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act as well as 3(1)(10) of the Atrocities Act against one Janakbhai Vinubhai Parmar, Mayurbhai Vinubhai Parmar and against the present applicant. Charge was framed by the trial court as other two accused were juveniles. Applicant was acquitted by the learned Special Judge for the offence punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code as well as Section 135 of the Bombay Police Act. As per the submission made by learned advocate for the applicant, applicant has already deposited the fine amount of Rs. 10,000/- on 29.01.2021. Applicant has also preferred Criminal Appeal No. 1423 of 2021 before this Court which was admitted on 17.12.2021. He has also referred the deposition of complainant Nathabhai Mulbhai at Exh. 19 and submitted that intention of the complainant to settle the scores of commercial dispute by implicating the family of the applicant. He has also referred the medical evidence of the doctor and injury caused to the patient is of simple in nature and there was no injury on any vital part of the body. As per the submission made by learned advocate for the applicant, the provisions of Section 3(1)(10) of the Atrocities Act not attracted in the present case. As merely using filthy words about the caste or community can not attract the provisions of Atrocities Act. As per the submission made by learned advocate for applicant, cause of dispute was due to rights of the quarry lease between the parties and it cannot be correlated with the offence of Atrocities Act. 8. As merely using filthy words about the caste or community can not attract the provisions of Atrocities Act. As per the submission made by learned advocate for applicant, cause of dispute was due to rights of the quarry lease between the parties and it cannot be correlated with the offence of Atrocities Act. 8. This Court would like to refer the judgment of this Court in case of Atul Indravadan Vaidh Thro His wife Vaidh Dipikaben Atulbhai v. State of Gujarat and others (R/Cr.M.A. No. 15020 of 2017 in Criminal Appeal No. 1177 of 2016) decided on 27.06.2017, wherein this Court has observed as under: "We have applied the test of the principles enunciated by the Supreme Court in the judgments discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind, vis-a-vis the liberty of the convicted applicant. The sentence imposed upon the applicant is for a limited duration, namely, imprisonment for seven years. Though the criminal appeal preferred by him has been admitted, there does not appear to be any likelihood that it would be heard and disposed of in the near future. The learned Special Public Prosecutor has submitted that the SIT has sought approval from the State Government to challenge the acquittal of the applicant under Section 302 of the IPC and also to prefer an appeal for enhancement of the sentence. Such an appeal has not been filed so far but it filed in future, it would have to be hard along with the criminal appeal preferred by the applicant. There would be other appeals of convicted persons and all appeals would be hard together, as is the usual practice. The expeditious disposal of the appeals(s), therefore, cannot be said to be a possibility that can be banked upon, with any amount of certainty." 9. There would be other appeals of convicted persons and all appeals would be hard together, as is the usual practice. The expeditious disposal of the appeals(s), therefore, cannot be said to be a possibility that can be banked upon, with any amount of certainty." 9. Considering the peculiar facts of the present case and the ratio laid down in the aforesaid judgment as the benefit of probation was given to the applicant by the court below earlier and later on it was set aside by this Court in Criminal Revision Application No. 364 of 2021, it would be appropriate to pass the following order: The order of sentence awarded to the present applicant in connection with the judgment and order dated 29.01.2021 passed in Special Atrocities Act Case No. 16 of 2013 by learned Special Judge (Atrocities) and Additional Sessions Judge, Rajula shall be suspended till final disposal of the Criminal Appeal No. 1423 of 2021. 10. It is clarified that this application only on the basis of the material in respect of the present application before this Court and not with any regard to any other aspect. 11. Hence, the present application is allowed and the applicant is ordered to be released on regular bail on executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned; [e] not enter into the village of Kakhbhai for a period of six months at the first instance without prior permission of the court concerned. [f] furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the learned Sessions Court concerned; 12. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. 13. Rule is made absolute to the aforesaid extent. Direct service is permitted.