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2024 DIGILAW 1830 (GUJ)

State Of Gujarat v. Jagdishbhai Bhanubhai Bhadani

2024-10-01

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : Hemant M. Prachchhak, J. 1. The present appeal is filed by the appellant – State of Gujarat (original complainant) under Section 378 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the judgment and order of acquittal dated 10/08/2007 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Surat (hereinafter referred to as “the trial court”) in Special Atrocity Case No.9 of 2006, whereby, the learned Trial Judge has acquitted the original accused respondents herein for the offence punishable under Sections 323, 504 and 506(2) of the Indian Penal Code (for short “the IPC”) and under Section 3(5) (7)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2002 (for short “the Atrocity Act”). 2. The brief facts giving rise to the present appeal are that, the respondent accused was residing at the above address against whom the complainant - Govindbhai Ichhubhai Vaghela, lodged a complaint on 12/10/2005 before the Limbayat Police Station that he was having some land and decided to sell some part to the respondent accused and therefore, accepted consideration of Rs.2.5 Lacs from the respondent accused as token. It is alleged that respondent accused gave promise to give rest of the amount upto 10/10/2005 but, he did not give and therefore, complainant gave token amount back to the respondent accused. It is the case of prosecution that thereafter, the said land was sold by registered agreement No.3353 to one Jerambhai Mahadevbhai Desai. It is alleged that thereafter, the respondent accused time and again came to the field and made compulsion to sign on the sell document. It is alleged that on 12/10/2005, at about 4:00 p.m. in the evening, the respondent came to the field where complainant was present and respondent accused asked the complainant to sing on the sell document and in response, the complainant had denied to do so. However, the respondent accused got excited and caught hold of the complainant and gave kick and fist blows and also threatened him that if he does not sign, the respondent will kill him. The respondent accused abused him by saying that, "tame dheda sala fati gaya choo". However, by calling Jerambhai over telephone, he rushed to the spot and saved the complainant from further beating. As the Police came to the spot, respondent accused ran away from the spot. The respondent accused abused him by saying that, "tame dheda sala fati gaya choo". However, by calling Jerambhai over telephone, he rushed to the spot and saved the complainant from further beating. As the Police came to the spot, respondent accused ran away from the spot. 2.1 The complainant was lodged, investigation was conducted, Panchnama was drawn, statements of the witnesses were recorded and upon completion of the investigation as sufficient evidence to link the accused with crime was revealed, the accused person was charge-sheeted for the aforesaid offences. However, the learned Judge did not appreciate the evidence on record of the case, mainly the evidence of the complainant, Police Witnesses who had conducted the fair investigation, so also, the important piece of the evidence in form of caste certificate and thereby, acquitted the respondent accused vide judgment and order of acquittal dated 10/08/2007. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant – State of Gujarat has filed the present appeal under Section 378 of the Code of Criminal Procedure, 1973. 3. Heard learned Additional Public Prosecutor Ms.Jyoti Bhatt, appearing on behalf of the appellant State. Though served, none has remained present on behalf of the respondent accused. 4. Learned APP Ms.Bhatt has submitted that the trial court has committed a grave error while passing the impugned judgment and order acquitting the respondent accused from the charges levelled against him under the provisions of IPC as well as the Atrocity Act. She has submitted that though there was sufficient material and evidence led by the prosecution before the trial court, the trial court has failed to appreciate the evidence in light of the facts of the present case and in light of the provisions of the Special Act. She has submitted that the case of the prosecution is supported by the evidence of independent witnesses, however, the trial court has disbelieved and discarded the evidence of those witnesses only on the ground that there was a material contradiction in the deposition of those witnesses and therefore, they cannot be relied upon. She has submitted that the case of the prosecution is supported by the evidence of independent witnesses, however, the trial court has disbelieved and discarded the evidence of those witnesses only on the ground that there was a material contradiction in the deposition of those witnesses and therefore, they cannot be relied upon. She has further submitted that the case of the prosecution is supported by the evidence of independent witnesses namely, Bhavesh Laherulal Dayma (PW-3) at Exh.- 25, Jerambhai Mahadevbhai Desai (PW-5) at Exh.-31, Dr.Rohitbhai Babubhai Bhingradiya (PW-6) at Exh.-33 and police witnesses, and therefore, the impugned judgment and order of acquittal is erroneous, illegal and unjust. She has further submitted that the Panchnama of the place of offence was also proved beyond reasonable doubts, however, the trial court has not considered this fact in its true and proper spirit while recording the reasons and passing the impugned judgment and order of acquittal. 4.1 Learned APP Ms.Bhatt has submitted that the prosecution has examined 14 witnesses and also produced 12 documentary evidences on record of the case to prove the case of the prosecution against the respondent accused, however, the trial court has failed to appreciate those documentary evidences as well as oral evidence available on record of the case. She has further submitted that the trial court has erroneously come to the conclusion that the prosecution has not proved its case beyond reasonable doubts and the fact that the complainant was abused in public place because no other person was present at the time when complainant was beaten up and abused. She has submitted that on the contrary, on perusal of the evidence of Bhaveshbhai (Exh.-25) and Jerambhai (Exh.-31), it was proved from their depositions that when they reached to the spot, the complainant was given kick and fist blows so also abused in public place, however, without considering the evidence of those to witnesses, the trial court has passed the impugned judgment and order acquitting the respondent accused, which is erroneous, illegal and unjust. Learned APP Ms.Bhatt has, therefore, urged the present appeal be allowed and the impugned judgment and order of acquittal be quashed and set aside and the respondent – original accused be held guilty of the alleged offence. 5. Learned APP Ms.Bhatt has, therefore, urged the present appeal be allowed and the impugned judgment and order of acquittal be quashed and set aside and the respondent – original accused be held guilty of the alleged offence. 5. Though notice has been served upon the respondent accused long back, he has chosen not to appear before the Court and therefore, the Court has proceeded further in his absence since the matter is of the year 2008. 6. I have heard learned APP Ms.Bhatt appearing on behalf of the appellant State. After considering the arguments and after going through the records, the trial court has recorded its findings in paragraph no.8 and observed that the complaint was the erstwhile owner of the parcel of land being block no.63 and he was present at the place of occurrence on the date of incident i.e. on 12/10/2005. At that point of time, the assailant came and asked the complainant to put his signature on the agreement to sale and to execute the sale-deed in his favour and in the spur of moment, scuffle took place between them and the assailant had given kick and fist blows to the complainant and also used filthy language in public place thereby committing the offence punishable under the provisions of the Atrocity Act. Thereafter, when the complainant had called for help, at that time, PW-5 alongwith PW-2 reached the place of incident on motor-cycle but, the assailant had already left the place and ran away. It also appears from the record that the complainant had already sold the land to PW-5 on 21/04/2005 by way of executing registered sale-deed and therefore, he was not the owner on the date of incident. It was also further observed by the trial court while deciding the issue nos.1 to 4 that the version narrated by the complainant while lodging the complaint was different from the version narrated by the so-called witnesses PW-2 and PW-5. In fact, PW-5 became the subsequent owner and purchaser of the subject parcel of land by executing the registered sale-deed and on the date of incident, the complainant was no more the owner of the said parcel of land and therefore, there was no question of executing any sale-deed or signing any agreement to sale in favour of the assailant. In fact, PW-5 became the subsequent owner and purchaser of the subject parcel of land by executing the registered sale-deed and on the date of incident, the complainant was no more the owner of the said parcel of land and therefore, there was no question of executing any sale-deed or signing any agreement to sale in favour of the assailant. 6.1 It is required to be noted herein that, the complainant had stated that the assailant had given kick and fist blows and due to the injuries sustained by him, he was taken to hospital, wherein, the PW-6 - Dr.Rohitbhai Babubhai Bhingradiya (Exh.- 33) being the Medical Officer had examined the complainant and in his oral as well as documentary evidence he has stated before the trial court that he had not noticed any injury either on external or internal part of the body of the complainant and therefore, nothing was mentioned in the medical certificate with regard to the injuries, which also suggests that the story put up by the prosecution is nullified from the evidence of PW- 6. It is also required to be noted herein that there was a material contradiction in the ocular version of the PW-2, PW-5 and the complainant. PW-2 and 5 have posed themselves as eye-witnesses to the incident and in their presence, the assailant was scolding the complainant and also using filthy language, whereas, the complainant has stated in his oral evidence that when PW-2 and 5 reached the place of incident, the assailant had already fled away from the place of incident, which goes to the root of the prosecution case and therefore, the story put up by the prosecution is rightly disbelieved and discarded by the trail court. 6.2 So far as the allegations under the provisions of Section 3(1)(3)(5) and (10) of the Atrocity Act are concerned, from the bare reading of Section 3, it is clear that for committing an offence under the provisions of Atrocity Act, ‘intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; abuse of any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view’ are the necessary ingredients. Herein the present case, the place of incident is an agricultural filed of PW-5 whose erstwhile owner was the complainant, meaning thereby, it was not a public place and therefore, the allegations made by the complainant for the offence punishable under Section 3(1)(3) (5) and (10) of the Atrocity Act was rightly disbelieved by the trial court, as it has specifically came on record that the PW-4 – Jasuben Govindbhai Vaghela, wife of the complainant, who has stated before the trial court in her oral evidence that the assailant had come to their house at first and since her husband had left towards the agricultural field, the assailant went to the agricultural field and upon instructions she came to know about the incident, meaning thereby, the trial court has rightly discarded the evidence of the said witness PW-4 as it was contrary to the evidence of other witnesses and therefore, considering all these aspects, the trial court has rightly passed the impugned judgment and order of acquittal. 6.3 It is now well settled that while interfering with the findings recorded by the trial court while exercising jurisdiction under Section 378 of Cr.P.C., the Court has power to review, re-appreciate and in case of any perversity, the Court can certainly entertain the appeal under Section 378 but, herein the present case, there is no any illegality or any infirmity in the impugned judgment and order of acquittal passed by the trial court. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 , more particularly paragraphs 42 and 43, which was subsequently reaffirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Hence, I am in complete agreement with the findings recorded by the trial court. 7. For the foregoing reasons, the present appeal fails and is hereby dismissed. The judgment and order of acquittal dated 10/08/2007 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Surat in Special Atrocity Case No.9 of 2006 is hereby confirmed. Hence, I am in complete agreement with the findings recorded by the trial court. 7. For the foregoing reasons, the present appeal fails and is hereby dismissed. The judgment and order of acquittal dated 10/08/2007 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Surat in Special Atrocity Case No.9 of 2006 is hereby confirmed. Bail bond, if any, furnished by the respondent accused stands cancelled. 7.1 Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.