Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1205 (GUJ)

State Of Gujarat v. Patel Nareshbhai Jivanlal

2024-05-23

NISHA M.THAKORE

body2024
ORDER : 1. The present Appeal is filed at the instance of State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short ‘the Code’) and is directed against the judgment and order of acquittal dated 12.06.2007 passed by the learned Additional Sessions Judge & Fast-track Judge, Mahesana camp at Visnagar in Special (Atrocity) Case No.2 of 2007. 2. By the said judgment and order, the learned Special Judge has recorded acquittal of respondent Nos.1 to 3 hereinoriginal accused for the offence alleged under Sections 504, 506(2) and 114 of the Indian Penal Code (for short ‘IPC’) as also under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Atrocities Act’) as well as Sections 3 & 7 of the Human Right Protection Act (for short ‘the protection Act’) and Section 135 of the Bombay Police Act (for short ‘B.P.Act’), in Special (Atrocity) Case No.2 of 2007. 3. The facts giving rise to the present appeal are as under: 3.1 The complainant – Mukeshbhai Somabhai Solanki, resident of Plot No.19-20, Anandkunj Society, Dharoi Colony Road, Visnagar, has approached Visnagar Police Station for lodging a complaint against the present respondent Nos.1 to 3 – original accused for the alleged offences under Sections 504, 506(2) and 114 of IPC as also under Section 3(1)(x) of the Atrocities Act as well as Sections 3 & 7 of the Protection Act and Section 135 of the B.P.Act. According to the complainant – Mukeshbhai Solanki, he is residing with his family at Visnagar and is doing service with Dr. Supreshbhai Pandya. In his family, there are four brothers which includes elder brother – Dhanjibhai, who resides at Anandkunj Society with his family situated near Visnagar Dharoi Colony. The complainant intended to construct new house at plot No.19 and 20, adjacent to the house of his elder brother, for which, necessary permission has been obtained from the Visnagar Nagarpalika. The construction of the house has been started under his supervision as well as of his elder brother – Dhanjibhai. 3.2 It is the case of the complainant that on 15.10.2006, the construction of the new house at Anandkunj Society was in progress at around 7:15 hours in the evening. The construction of the house has been started under his supervision as well as of his elder brother – Dhanjibhai. 3.2 It is the case of the complainant that on 15.10.2006, the construction of the new house at Anandkunj Society was in progress at around 7:15 hours in the evening. The accused persons namely Thakor Kantiji Mansangji, Patel Nareshbhai Jivanlal and Patel Kanubhai Chaturbhai, who also were residing in the same society, had approached near his house and had started abusing him by making remarks against his caste and had asked him to immediately stop the construction of the new house. It is the case of the complainant that the said accused persons had asked him to immediately leave the place, as such society was available for the superior Class of the society, wherein the persons belonging to the lower caste were not permitted. It is the case of the complainant that the said accused had used abusive language and thereby, intentionally insulting the complainant in the public view, had committed the aforesaid offence. According to the complainant, the accused persons had used abusive words against his caste as well as against his family. Noticing the altercations, the elder brother - Dhanjibhai, sister-in-law - Pushpaben and their two daughters and the persons residing nearby, had gathered, at that time accused - Nareshbhai, who was armed with Dhoka and Patel Kanubhai who was armed with stick and Thakor Kantiji who was armed with Dhoka, had threatened to leave the place as well as to vacate the house. The threat was administered that if he would not leave the place, he would be assaulted by the said weapons and threat to his life was also administered and had thereby committed offence under Sections 504, 506(2) and 114 of IPC as also under Section 3(1)(x) of the Atrocities Act as well as Sections 3 & 7 of the Protection Act and Section 135 of the B.P.Act. 3.3 The said FIR was registered before the PSO, Visnagar Police Station at around 22:30 hours on 15.10.2006. Upon registration of the said FIR, the competent Officer namely the Deputy Superintendent of Police (SC-ST Cell), Mahesana was informed about the offence registered against the accused persons named therein. 3.3 The said FIR was registered before the PSO, Visnagar Police Station at around 22:30 hours on 15.10.2006. Upon registration of the said FIR, the competent Officer namely the Deputy Superintendent of Police (SC-ST Cell), Mahesana was informed about the offence registered against the accused persons named therein. The competent Officer had proceeded with the investigation by recording the statements of the witnesses, the panchnama of place of offence was drawn, the accused came to be arrested on 16.10.2006 and were thereafter released on bail on 17.10.2006. After thorough investigation, considering prima facie case against the respondents – accused, charge-sheet was filed and was submitted before the Court of learned Judicial Magistrate First Class, Visnagar. Since the offence committed by the accused persons was exclusively triable by the Court of learned Special Judge under the special enactment, the same was committed to the Court of learned Additional Sessions Judge & Fast-track Judge, Mahesana for trial which was registered as Special (Atrocity) Case No.2 of 2007. 4.0 The respondents – original accused have appeared before the learned Special Judge and had pleaded not guilty to the charge levelled against them and had claimed to be tried. Before the Trial Court, the charge came to be framed against the respondents – accused at Exhibit-4 for the offence alleged. The prosecution had examined 6 witnesses. Apart from the oral evidences, the prosecution had also led documentary evidences. The details of the evidences produced before the Trial Court by the prosecution is reproduced in the tabular form hereunder. Oral Evidences Sr No Particulars Exhibits 1. Solanki Mukeshbhai Somabhai, Complainant 14 2. Maganbhai Malabhai Desai 15 3. Dhanjibhai Somabhai Rathod 21 4. Prajapati Naranbhai Gokalbhai 23 5. Dineshbhai Chhotalal Dagbar 24 6. Mayanksinh Ajitsinh Chavda, Investigating Officer 29 Documentary Evidences 1. Original complaint of the complainant 16 2. True copy of the Station Diary 17 3. Copy of the message sent through Wireless to the Dy.S.P., for the alleged offence 18 4. Depute Order 19 5. Panchnama of the scene of the offence 20 6. Caste certificate of the complainant 26 7. Construction permission obtained from the Visnagar Nagarpalika by the complainant 27 8. Declaration of the Additional District Magistrate 28 9. Panchnama of the accused and weapons 30 5.0 The pursis was submitted declaring closure of the evidence. Depute Order 19 5. Panchnama of the scene of the offence 20 6. Caste certificate of the complainant 26 7. Construction permission obtained from the Visnagar Nagarpalika by the complainant 27 8. Declaration of the Additional District Magistrate 28 9. Panchnama of the accused and weapons 30 5.0 The pursis was submitted declaring closure of the evidence. The further statements of the respondents – accused under Section 313 of the Code were recorded by the Trial Court. The reliance was placed upon the documents which has been placed on record along with list at Exhibit-32. The respondents – accused have in all produced 11 documents in support of their defence that a false case has been raised. The details of such documents are reproduced hereunder : Sr No. Particulars Date 1. Certified Copy of the complaint made by the Chairman of the Anandkunj Society, Visnagar as regards the illegal construction by the complainant, to the Visnagar Nagarpalika (Page Nos.1 to 3) 19/06/06 2. Certified copy of notice issued by the Visnagar Nagarpalika for removal of illegal construction carried on by the complainant – Mukeshbhai Somabhai Solanki. 23/06/06 3. Certified copy of the written reply by the complainant – Mukeshbhai Somabhai Solanki to the Nagarpalika. 26/06/06 4. Certified Copy of the Application made by the Nareshkumar -Chairman of the Anandkunj Society, Visnagar, to the Nagarpalika as regards to removal of illegal construction. 2/07/06 5. Certified Copy of notice issued to the Complainant – Mukeshbhai Solanki for removal of illegal construction by the Visnagar Nagarpalika. 3/7/06 6. Certified Copy of the instruction given by the Vinubhai Modi from the water department of Nagarpalika to disconnect the water connection of the complainant. 4/7/06 7. Certified Copy of the written reply given by the complainant to the Nagarpalika 4/7/06 8. Notice given by the Chairman of the Anandkunj Society, Visnagar to the Complainant 6/7/06 9. Copy of Resolution /Minutes of meeting held in the Anandkunj Society, Visnagar. 15/7/06 10. Minutes regarding Lavad Agreement of Anandkunj Society. 15/7/06 11. Copy of the Judgment of Lavad of Anandkunj Society (page Nos.1 to 3) 16/7/06 12. Notice issued to the Complainant by the Accused – Patel Nareshkumar, who is the Chairman of the Anandkunj Society, Visnagar. Copy of Resolution /Minutes of meeting held in the Anandkunj Society, Visnagar. 15/7/06 10. Minutes regarding Lavad Agreement of Anandkunj Society. 15/7/06 11. Copy of the Judgment of Lavad of Anandkunj Society (page Nos.1 to 3) 16/7/06 12. Notice issued to the Complainant by the Accused – Patel Nareshkumar, who is the Chairman of the Anandkunj Society, Visnagar. 31/7/06 6.0 The learned Special Judge, on overall appreciation of the evidence brought on record and considering the submissions made by the learned advocates appearing for the respective parties, without discussing any evidence on record and without assigning any reasons, merely by accepting the submissions of the respondents – accused about prevailing dispute going with regard to illegal encroachment being made by the original complainant and a false case raised by the complainant against the accused, arrived at a conclusion that the offence alleged is not proved. The learned Special Judge has proceeded to record the acquittal of the respondents – accused for the offence alleged, by the impugned judgment and order dated 12.06.2007 passed in Special (Atro.) Case No.02 of 2007. 7.0 Hence, this Appeal at the instance of the State. 8.0 Considering the grounds raised by the State in the present appeal, this Court by order dated 01.04.2008 had admitted the appeal and bailable warrant were issued upon the respondents – accused who have been joined as respondents Nos.1 to 3 - original accused. The record indicates that the bailable warrant issued by this Court has been duly served, however, they have chosen not to appear and contest the present appeal. 9.0 Pending hearing of this appeal, it was noticed that the original complainant – Mukeshbhai Somabhai Solanki has not been joined as party respondent. Considering the amendment brought in the special enactment, more particularly Section 15A of the Atrocities (Amendment) Act, 2018, this Court by order dated 12.04.2023 had permitted the State to join the original complainant as party respondent No.4 and had issued notice upon newly added respondent. The record reveals that notice has been duly served, however no appearance has been entered on behalf of respondent No.4. Considering the fact that the appeal relates to the year 2008, this Court had proceeded with the final adjudication of the appeal with the assistance of the learned APP. 10.0 Learned APP Ms. The record reveals that notice has been duly served, however no appearance has been entered on behalf of respondent No.4. Considering the fact that the appeal relates to the year 2008, this Court had proceeded with the final adjudication of the appeal with the assistance of the learned APP. 10.0 Learned APP Ms. Jirga Jhaveri appearing for the appellant – State, at the outset, had read the charge framed against the respondent – original accused. The original complaint produced on record at Exhibit -9, was read by the learned APP. By referring to the evidence of the original complainant recorded at Exhibit -14, she has submitted that the said witness has clearly deposed in his deposition about the manner in which incident had taken place implicating the respondents – original accused. The complainant had deposed before the Court that at the relevant point of time, while the construction work of his house was in progress, the accused persons had approached him to stop the construction work. He has further deposed that the accused persons have given filthy abuses to the complainant. The accused persons had administered the threat to his life. She has further submitted that the said witness had fully supported the case of the prosecution and had deposed in line of his original version in the complaint. Learned APP had also referred to the evidence of Maganbhai Malabhai Desai, who is being examined as PW-2 and he is the PSO of Visnagar Police Station at the relevant point of time. The complaint was registered by the said witness on 15.10.2006 at around 22:30 hours. The extract of the station diary entry No.80 has been brought on record through the said witness, which is admitted at Exhibit -17. The extract of relevant entry of the station diary has been placed on record recording the fact of handing over the investigation to the competent officer on the same date, which is marked as Exhibit -19. 10.1 Learned APP had thereafter referred to the evidence of Dhanjibhai Rathod, who has been examined as PW-3 and is the brother of the original complainant. While referring to his deposition, learned APP has submitted that he is the eye-witness to the incident and he has supported the case of the prosecution. Reliance was also placed on the evidence of Prajapati Nanubhai Golabhai, who is the panch witness of the recovery of weapons viz. While referring to his deposition, learned APP has submitted that he is the eye-witness to the incident and he has supported the case of the prosecution. Reliance was also placed on the evidence of Prajapati Nanubhai Golabhai, who is the panch witness of the recovery of weapons viz. stick and Dhoka, who has been examined as PW-4. According to learned APP, though the said witness has turned hostile, he has not disputed his signature on the panchnama, which is produced on record. The evidence of the Dineshbhai Chhotalal Dabgar who has been examined as PW-5 and being the second panch to the discovery panchnama, the said witness though turned hostile, has not disputed his signature on the panchnama. At this stage, learned APP had referred to the evidence of the Investigating Officer Mr. Mayank Chavda, Dy.SP, SC ST Cell, Mahesana, who has been examined as PW-6, to contend that the discovery panchnama was proved through the said witness. Lastly, learned APP had referred to the evidence of respondents – accused, in the form of further statement recorded under Section 313 of the Code. The attention of this Court was invited to the fact that no specific defence, as such, has been raised. She has submitted that the documentary evidences which were brought on record by the defence through the list produced at Exhibit -32, ought not to have been considered by the Trial Court, more particularly, when these documents were neither proved by the respondents – accused nor admitted as evidence by the Trial Court. 10.2 By referring to the aforesaid evidence brought on record by the prosecution and the defence raised by the respondents – accused about their false implication by lodging false FIR, learned APP had invited my attention to the reasons assigned by the learned Special Judge. She had submitted that the learned Special Judge has committed grave error in ignoring the aforesaid vital evidence being brought on record by the prosecution. On the other hand, learned Special Judge has straightway referred to the documents, as produced on record by the respondents – accused at Exhibit -32, to arrive at a conclusion that the respondents – accused were falsely implicated by lodging false complaint, by taking into consideration the prevailing dispute between the parties as regards the alleged illegal construction being put on by the original complainant by making encroachment on the land belonging to the society. She has therefore, urged this Court to quash and set aside the impugned judgment and order of acquittal and to examine the case on merits. 11.0 I have heard the learned Additional Public Prosecutor Ms. Jirga Jhaveri, appearing for the appellant – State and have also perused the impugned judgment and order passed by the learned Special Judge recording acquittal of the present respondents Nos.1 to 3 – original accused. I have also considered the submissions of the learned APP and have also perused the records and proceedings. 12.0 As noticed earlier, the prosecution has examined the original complainant and brother of the complainant – Dhanjibhai (PW-3) as witnesses to prove the case of the prosecution, no independent witnesses have been examined by the prosecution. Upon appreciation of the evidence of the original complainant – Mukeshbhai Somabhai Solanki (PW-1), the said witness has deposed before the Court as per the version in the form of the original complaint recorded with the concerned Police Station. The motive which has been attributed to the respondents – accused in the original complaint by the original complainant as well as in his deposition before the Court, is that the complainant belonged to the Scheduled Caste and the respondents – accused who were also residing in the same society had objected to the construction of his new house as they did not wish the persons belonging to the scheduled caste to reside in the same vicinity. 12.1 The complainant has also attributed the specific role to each of the accused. It was deposed before the Court that accused No.1 – Nareshbhai Patel was armed with Dhoka, accused No.2 – Patel Kanubhai was armed with stick. Though in the complaint, the complainant has attributed accused – Thakor of carrying Dhoka, however in his deposition he has not referred to the aforesaid fact. The said witness has reiterated his case about the alleged use of abusive words, of administering threat to his life. He has also reiterated the remarks made by the accused against his caste. In his cross examination, the specific defence has emerged on record of the respondents -accused about illegal encroachment being made by the original complainant and the proceedings initiated by the society against the complainant. He has also reiterated the remarks made by the accused against his caste. In his cross examination, the specific defence has emerged on record of the respondents -accused about illegal encroachment being made by the original complainant and the proceedings initiated by the society against the complainant. In his cross examination, the complainant has admitted the fact about respondent No.1 – Naresh having moved an application before the Nagarpalika complaining about encroachment made by him. Though initially, he has disputed about issuance of notice dated 23.06.2006 by the Nagarpalika about the encroachment, later on he has accepted the fact of having received such notice but he has objected to any encroachment being made by him. He has also confirmed of having responded to such notice by giving reply, wherein he has assured before the Nagarpalika of not placing the gate dehors the construction permission. He has shown his ignorance towards the application dated 02.07.2006 submitted by accused – Nareshbhai to the Nagarpalika. However, he has confirmed the fact that notice dated 03.07.2006 was issued by the Nagarpalika which has been received by him. He has also admitted the fact that he has submitted his reply to such notice and had assured before the Nagarpalika, not to make the construction dehors the permission granted. 12.2 It has further emerged on record that Chairman of the society has also issued notice whereby the original complainant was called in the society meeting. He has admitted the fact that the residents of the society have raised objection with regard to the illegal construction and the authority was given to the respondent (accused) – Nareshbhai to resolve the issue. While disputing the contents of the letter dated 15.07.2006, the complainant has admitted his signature taken in the meeting of the society. He has denied the fact that 6 persons were appointed by the society as Lavad to resolve the issue. He has disputed the issuance of notice dated 29.07.2006 issued by the Chairman of the society which according to him was handed over to his brother. He has categorically denied that the accused were threatened with false case of atrocity, if they fail to withdraw the complaint submitted to the Nagarpalika filed against him with regard to the illegal construction. He has also admitted the fact that the construction of the said house has been completed, however they are not residing in the said society. He has categorically denied that the accused were threatened with false case of atrocity, if they fail to withdraw the complaint submitted to the Nagarpalika filed against him with regard to the illegal construction. He has also admitted the fact that the construction of the said house has been completed, however they are not residing in the said society. 12.3 Upon appreciation of the aforesaid evidence, it can be culled out that the dispute was prevailing between the parties with regard to the illegal encroachment being made by the original complainant on the part of the land belonging to the society, for which, Nagarpalika had also issued notices to the complainant wherein the complainant had assured not to make any construction dehors the permission. 13.0 With such circumstances being brought on record, a strong defence has been raised about false implication of the respondents – accused by lodging false case of atrocity by the complainant. In order to seek corroboration of the case put-forward by the original complainant, this Court has examined the evidence of the witness to the incident – Dhanjibhai Somabhai Rathod, who has been examined as PW-3. Indisputably the said witness is the brother of the original complainant. In his deposition before the Court, the said witness has, at the outset, deposed before the Court that he is residing in the same society since last two years with his family. The aforesaid part of the evidence contradicts the very motive attributed by the original complainant against the respondents – accused. Upon comparison of the evidence of the said witness, the case put-forward by the complainant, deposition before the Court as well as in the original complaint, it transpires that the said witness has come out with a different version. He has deposed before the Court that the respondents – accused asked him not to intervene by making remarks against his caste and threatened him with assault if he fails to. He has categorically deposed that except for the aforesaid threat administered, no other remarks were made by the respondents – accused. The contradictions are also noticed with regard to the weapons attributed to the accused. He has categorically deposed that except for the aforesaid threat administered, no other remarks were made by the respondents – accused. The contradictions are also noticed with regard to the weapons attributed to the accused. The original complainant in his complaint as well as in his evidence before the Court has stated that Kanubhai was carrying stick and Kantibhai and Nareshbhai were holding Dhoka, whereas the said witness has deposed that Nareshbhai was carrying stick and Kanubhai and Kantibhai were carrying Dhoka. In his cross examination, the said witness has denied about his statement recorded before the Police. The respondents – accused have been successful in challenging the evidence of said witness. Noticing the improvisation which has been made in his evidence given before the Court, the said witness has also admitted the fact about the application given by the respondent – accused against the complainant with regard to illegal construction made on the part of the society. Thus, the said witness is not found reliable. Except for the aforesaid witnesses, no other independent witnesses have been examined by the prosecution. 14.0 In light of the controversy involved, the question which is posed for consideration is whether the mens rea of the accused was characterized by intention to prevent construction of house of Scheduled Caste person in society of residents of upper caste or whether it was with intention to prevent complainant from making construction dehors permission of Nagarpalika. The case of the prosecution is that the accused have intentionally insulted him and intimidated him by making remarks against his caste with intent to prevent the person of Scheduled Caste to construct house in society of residents of upper caste, is dislodged successfully by the defence. As evident from the cross examination of the complainant, he has admitted the fact of receipt of various notices from the Nagarpalika as regards encroachment being made on society plot and construction being made dehors permission. The mens rea attributed by the complainant to accused stands falsified for the fact that the brother of complainant has been residing in the same society with his family since last 2 years. Nothing is brought on record to suggest that at any stage, the member of the society had objected to his occupation of plot in society. It’s worth to mention that no conduct is unlawful unless a mens rea accompanied it. Nothing is brought on record to suggest that at any stage, the member of the society had objected to his occupation of plot in society. It’s worth to mention that no conduct is unlawful unless a mens rea accompanied it. The common law maxims “actus non facit reum nisi mens sit rea”, which means ‘the act is not guilty until the mind is guilty’. The defence has successfully raised reasonable doubt and the accused therefore cannot be convicted unless the charge against them are proved beyond reasonable doubt. With such evidence on record, when the oral evidence of the original complainant is evaluated, the same does not prove the guilt of the accused to convict the respondents – accused for the offence alleged and therefore, no offence under Section 3(1)(x) of the Atrocities Act is made out so as to attract the offence as alleged. 15.0 Apart from the aforesaid evidence, the panch witnesses who have been examined by the prosecution, as PW-4 – Prajapati Nanubhai Golabhai, PW-5 – Dineshbhai Dabkar, who are panchas to the panchnama of the recovery of weapons like stick and Dhoka, have turned hostile, no corroboration of the recovery of the weapons can be sought from the evidence of Investigating Officer (PW-6). As regards the incident having taken place, as alleged, it was for the prosecution to prove the case beyond reasonable doubt by leading evidence establishing the incriminating circumstances, on which it proposes to rely, the evidence, as evaluated, pales to unerringly point fingers towards the guilt of the accused so as to arrive at a conclusion within all human probability that the accused have acted in the manner as alleged and had thereby committed the crime. For the foregoing reasons, no offence, as alleged under Sections 504, 506(2) and 114 of IPC as also under Section 135 of the B.P.Act is made out against the respondents – accused. 16.0 In absence of any evidence being brought on record, the prosecution has failed to establish the guilt of the respondents – accused. Hence, the present appeal fails and it is hereby dismissed. Records and Proceedings be transmitted back to the concerned Court and Bailable warrant issued, if any, stands cancelled.