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2024 DIGILAW 1321 (GUJ)

RAKESHBHAI RAMJIBHAI RATHOD v. STATE OF GUJARAT

2024-06-19

GITA GOPI

body2024
ORDER : 1. Though the learned Advocate for the applicant was served with a notice, today, when the matter was called out, no one has appeared on behalf of the applicant. 2. The present Revision Application is challenged under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’) by the original complainant - the applicant herein, making the three accused alongwith the State as respondents. The Revision application qua the respondent No. 3-Kantilal Ishvardas Patel came to be abated by the order of the Court dated 21.01.2015. 3. By way of this application, the challenge is given to the judgment of acquittal passed on 26.03.2024 by the learned Additional Sessions Judge, Fast Track Court No. 10, Gandhinagar in Atrocity Case No. 46 of 2003. The trial was against the three accused under Sections 323, 504, 506(2), 427 read with Section 114 of the Indian Penal Code and under Section 3(1)(10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to in short as the ‘Atrocity Act’). A complaint/First Information Report (FIR) was filed at Pethapur Police Station on 23.12.2002 by the present applicant as II-C.R. No. 104 of 2002. 4. The revisionist has raised the ground that he was working as watchman in Mulchand Park, Pethapur Taluka and District Gandhingar. It is alleged that the accused have used abusive language and had beaten him by giving blows and threatened him not to live in the Village or else he would be killed. The grounds raised in present Revision Application are that the order impugned is illegal, unjust, improper and bad in law against the facts and circumstances and the evidence on record. The order is against the good conscience and the settled position of law. One of the grounds raised by the revisionist is to the effect that the learned Judge was required to appreciate the fact and a bare perusal of the FIR makes it clear that the accused are head strong persons who do not like backward class persons. It is further stated that the entire incident has occurred because the applicant belongs to Dedh community - backward class and had taken the land of the accused. 5. It is further stated that the entire incident has occurred because the applicant belongs to Dedh community - backward class and had taken the land of the accused. 5. It is further stated by the revisionist in the ground that on date of the incident, i.e. 22.12.2003, the accused had come to Mulchand Park and had abused and broken down the verandah constructed on the land. It is stated that the accused had come to beat the applicant and had threatened him but the learned Judge has ignored this aspect. The evidence of Mahesh Shah below Exhibit 51 supports the case of the applicant, who have supported saying that the accused have used abusive language. Mahesh Shah alongwith his partner Kanubhai had intervened when the accused were beating the applicant and Mahesh Shah is an eye witness to the incident. Such evidence recorded was not appreciated by the learned trial Court. It is stated that the Mahesh and Kanubhai are the eye witnesses to the incident. It is further stated that after investigation, the accused were found guilty and therefore, the charges were leveled against them. The learned Judge has not appreciated the evidence which supports the case of the applicant. 6. On the other hand, learned Additional Public Prosecutor stated that no challenge has been given by the State since evidence is led which does not support the case of the complainant. However, the learned Additional Public Prosecutor submitted that if at all any evidence requires appreciation, this Court may pass necessary order so that justice can be done. 7. Having heard the submissions and on perusing the records of the case, the impugned judgment reveals that about six witnesses were examined by the learned trial Court. The charges were framed. The statement of the accused under Section 313 of the Cr.P.C. was recorded. The list of documents were produced by them and the plaint of Regular Civil Suit Nos.280 of 2002 and 281 of 2002 were produced on record. Copy of the notice served to the defendant and the documents showing the presence of the accused No. 3 at the place of his service were also noted. 8. The learned Judge has examined the evidence of the incident which has occurred on 23.12.2022. Copy of the notice served to the defendant and the documents showing the presence of the accused No. 3 at the place of his service were also noted. 8. The learned Judge has examined the evidence of the incident which has occurred on 23.12.2022. The learned Judge has referred to the evidence of the complainant-Rakeshbhai Ramjibhai Rathod at Exhibit 9 where he has reiterated the facts of the offence and has stated that the accused on 23.12.2002 had threatened him not to purchase any land which was at the place of incident. It is further submitted that three of the accused had earlier met him on the earlier date, i.e. 22.12.2002. A quarrel had occurred on 22.12.2002 and the complaint was given on 23.12.2002. A complaint at Exhibit 10 was produced on record. It is further submitted that when the incident had taken place, he was all alone at 12.00 noon. 9. Further, the learned Judge has also referred to the evidence of Mulchandbhai Rathod at Exhibit 13 who is a Building Contractor. According to him, apart from him as per his evidence, there are three other partners where they had purchased the land on Pethapur G.B. Road and had constructed Mulchand Park where the complainant was a chowkidaar and and that he had no personal knowledge of the incident. He is found to be hear-say witness and according to him, the verandah was constructed, which has been broken down by the accused and as alleged has also stated that they have used abusive language with the complainant. 10. The witness - Mahesh Jivanbhai Shah at Exhibit 15 is noted to be a partner in Mulchand Park. According to him, the land was surrounded with a compound wall. The ruckus occurred on 22.12.2002 and the complainant has informed him on 23.12.2002. According to him, when he was at his office on 23.12.2002, he and his partner-Kanubhai were seated at their office, they heard some noise and signs of quarrel and therefore, he went to the place of incident and found that the accused were abusing the complaint. The evidence of Kanubhai Maghabhai was noted at Exhibit 16. He is a partner in Mulchand Park and according to him on 22.12.2002, the complainant had called him in the night hours to state that the above accused are raising a quarrel with him. The evidence of Kanubhai Maghabhai was noted at Exhibit 16. He is a partner in Mulchand Park and according to him on 22.12.2002, the complainant had called him in the night hours to state that the above accused are raising a quarrel with him. On 23.12.2002 when he and Mahesh Shah were present on the site at their office, the incident had taken place. It is this witness who has given the deposition of abusive words which have been alleged to have been uttered by the accused and has further stated that the quarrel was with regard to a compound wall. 11. The evidence of the Investigating Officer-Assistant Police Inspector S.S. Chudasma was recorded and according to him, the complaint came to be registered and the panchnama of the place of incident was drawn at Exhibit 14. The learned Judge on appreciation of evidence of the record and all the witness stated that that the complainant was addressed with casteist slurs, who abused the accused but the said fact has not been supported by the witness and according to their evidence, both of the witnesses have been at their office. The learned Judge as per the evidence of the complainant and that of both the witnesses observed that the place of incident and office is at about a distance of 200-215 meters and at that time, at the place of the incident complainant was the sole person. Thus, the evidence of both the witnesses does not corroborate with that of the witnesses having heard the incident. 12. In addition, the learned Judge has found that the complainant had tried to project that these two witnesses were eye-witness but has not been successful in proving the same. The complainant-Rakeshbhai Ramjibhai Rathod though had given his evidence but has not specified the words used by the accused while Mulchandbhai Rathod states that he has no personal knowledge of the incident. According to Mulchandbhai Rathod, he came to know that something had occurred on GEB Road and therefore, he had come at the place. The learned Judge thus has concluded that the fact of the complainant being abused by any verbal utterances could not be proved. Further it was noted that Section 504 of the IPC is not proved by the evidence of the complainant nor any corroborative evidence of the other witnesses. 13. The learned Judge thus has concluded that the fact of the complainant being abused by any verbal utterances could not be proved. Further it was noted that Section 504 of the IPC is not proved by the evidence of the complainant nor any corroborative evidence of the other witnesses. 13. For appreciation of Section 427 of the IPC, the learned Judge has referred to the panchnama-Exhibit 14 and according to the panchnama, the incident has occurred at the rear side of the house of Kanti Ishwar and Baldev Natha where there is wall of cement and brick and on the southern side of Kantibhai’s house, there is a thorned hedge and the wall on the backside is noted to be a kacha wall, and leaving that, is an open space. 14. The learned Judge has noted that the complainant in his evidence at Exhibit 9 could not prove that the wall was broken by the accused; while referring to the panchnama of place of the incident, the hedge has been noted while no evidence has been proved of any verandah being destroyed by the accused causing damage. The learned Judge has noted that the evidence could not prove of any such alleged damage. 15. The evidence further was appreciated to consider the case under the Atrocities Act. The learned Judge found that the witness does not give corroborative evidence of any injury caused to the complainant and no medical evidence has been produced to show about the medical treatment that was taken by the complainant and thus, the offence under Section 323 of the IPC was not found to be true. No witness have stated of threat given by the accused to the complainant with regard to his life. The learned Judge has also referred to the evidence in the form of Certificate produced at Exhibit 12 to note the Caste of the complainant. The allegations against the accused was with regard to the fact that they had threatened the complainant that he should not purchase any land since he belongs to the Schedule Caste but no such evidence has been given by the complainant. The learned Judge has noted that the complainant is a Chowkidaar at Mulchand Park. The allegations against the accused was with regard to the fact that they had threatened the complainant that he should not purchase any land since he belongs to the Schedule Caste but no such evidence has been given by the complainant. The learned Judge has noted that the complainant is a Chowkidaar at Mulchand Park. The uncle of the complainant-Mulchandbhai Rathod was examined at Exhibit 13 and has stated that the complainant has not informed him of any accused using abusive words against him to insult their Caste. He has also not seen the incident with his own eyes as he was on a tour at Rajasthan. The learned Judge has noted that the other witnesses were in their office and when the quarrel was going on, there was lot of noise and had come to a conclusion that at the time of incident, only the complainant was present at the place and no other witnesses were present. Therefore, the incident to fall under Section 3(1)(10) of the Atrocities Act does not get proved. 16. At this stage, this Court would like to the following decisions: (a) Decision of this Court in the case of Dhiren Prafulbhai Shah Vs. State of Gujarat, 2016 (4) GLR 2785 . In this case, the meaning of meaning of ‘public view’ has been examined. In the present case, there is no such humiliation of the complainant as being the member of Scheduled Caste and Scheduled Tribe Community. The FIR does not suggest that any such casteist remarks were made to humiliate the complainant in a public view or in a public place. (b) In Swaran Singh and Others Vs. State, through Standing Counsel and Others, (2008) 8 SCC 435 , the Hon’ble Apex Court has drawn distinction between the expression “public place” and “in any place within public view.” It was held that if an offence is committed outside the building, e.g. in a lawn outside a house and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building but some members of the public are there (not merely relatives or friends), then it would not be an offence since it is not in the public view. On the contrary, if the remark is made inside a building but some members of the public are there (not merely relatives or friends), then it would not be an offence since it is not in the public view. As per the allegations made in the impugned complaint, the allegations of abusing the complainant were within the four walls of his house. It is not the case of the complainant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered “in any place within public view” is not made out. In the case on hand, none of the ingredients of the offences alleged against the applicants under the provisions of the Atrocities Act are made out nor even on a bare reading of the allegations in the impugned complaint. 17. It is required to be noted that the applicants are alleged to have committed offences punishable under the Atrocities Act. However, none of the ingredients of the offences punishable under sections 3(1)(r)(s) and 3(2) of the Atrocities Act appear to be present in this case. The basic ingredients of the offence under Section 3(1)(r) of the Atrocities Act can be classified as (i) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within public view. The offence under Section 3(1)(r) would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Atrocities Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or a Scheduled Tribe. Another key ingredient of the provision is that the insult or intimidation should be in “any place within public view.” 18. In view of the aforesaid discussion, there is no substance in the present application. The judgment of acquittal passed on 26.03.2024 by the learned Additional Sessions Judge, Fast Track Court No. 10, Gandhinagar in Atrocity Case No. 46 of 2003 is confirmed. The present application deserves to be rejected and hence, stands rejected.