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2024 DIGILAW 2187 (GUJ)

State Of Gujarat v. Patel Kaushikkumar Pravinbhai

2024-12-11

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. Present appeal is filed by the appellant – State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the impugned judgment and order dated 10.07.2007 passed by the learned Special Judge (Atrocity), Mehsana (hereinafter be referred to as “the trial Court”) in Special (Atrocity) Case No. 11 of 2007 for the offences punishable under Sections 323, 504, 506(2), 341, 114 etc of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as “the Atrocity Act”) whereby the trial Court has acquitted the accused for the alleged offence. 2. Brief facts of the present case, in nutshell, are as under:- 2.1 It is the case of the prosecution that on 08.06.2005 at about 10.30 hours, complainant came to Fuvara Stand, Mehsana and have taken three passengers of Village: Kherva and while he was going towards Kherva through Ambaji Parama Tower, the accused and one another person came with rickshaw bearing registration No.GJ-2-Y-9398 and they have given filthy abuses to the complainant and administered threat not to pass through the Tower, otherwise they would set him on fire. 2.2 On the basis of the said incident, the FIR came to be lodged for the aforesaid offences against the accused. The Investigating Officer has recorded statements of the witnesses and collected necessary evidence against the accused. 2.3 After completion of investigation, as the sufficient evidence was found, the police has filed the charge-sheet against all the accused before the Court of learned Judicial Magistrate, First Class. As the offence was triable by the Court of Sessions, the concerned Court has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions at Mehsana wherein it has been registered as Special (Atrocity) Case No. 11 of 2007. 2.4 The charge against the accused came to be framed by the trial Court on 25.04.2007 for the aforesaid offences against the accused and explained it to them, the accused denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the trial Court. 2.5 To prove the case, the prosecution has examined as many as eleven witnesses and also produced the following documentary evidence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the trial Court. 2.5 To prove the case, the prosecution has examined as many as eleven witnesses and also produced the following documentary evidence. 2.6 After closure of the evidence, further statement of the accused under Section 313 of the Criminal Procedure Code, 1973 has been recorded. After hearing both sides and considering the evidence on records, the trial Court by impugned judgment and order has acquitted the accused from all the charges levelled against them. 3. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant – State of Gujarat has preferred this Appeal. 4. Heard Ms.Jyoti Bhatt, learned Additional Public Prosecutor for the appellant – State of Gujarat at length. It is relevant to note that as per the order dated 06.09.2023 passed by the Coordinate Bench of this Court, the original complainant had joined as party respondent and issued notice to him. On returnable date, the concerned bailiff has filed report before this Court contending that the original complainant was expired. The death certificate of the complainant is on record along with the report of the bailiff. Though served, the respondents – accused have chosen not to appear before the Court and hence the appeal is decided in absence of the accused. 5. Ms.Jyoti Bhatt, learned Additional Public Prosecutor for the appellant – State of Gujarat, while referring to the entire oral as well as documentary evidence, has assailed the impugned judgment and order and has submitted that the trial Court has not taken into consideration the evidence connecting the accused to the alleged offence in its proper perspective. She has submitted that the trial Court ought to have believed that the prosecution has been able to prove the charges levelled against the accused. While referring to the evidence of the witnesses and the material collected against the accused, Ms. Bhatt, learned Additional Public Prosecutor has submitted that the prosecution has established the case against the accused by examining the witnesses who have supported the case of the prosecution, however, the trial Court has discarded and disbelieved the evidence of the witnesses and failed to appreciate the statutory presumption. Bhatt, learned Additional Public Prosecutor has submitted that the prosecution has established the case against the accused by examining the witnesses who have supported the case of the prosecution, however, the trial Court has discarded and disbelieved the evidence of the witnesses and failed to appreciate the statutory presumption. She has submitted that the accused have intended to insult the complainant by using the words as mentioned in Section 3(1)(x) of the Atrocity Act and prosecution has produced documentary evidence to prove the case with regard to the fact that the accused have made assault and caused injury to the complainant. She has submitted that the complainant has sustained injury because of the assault made by the accused, which fact was supported by corroborative piece of evidence of P.W.1 and the injury certificate at Exhibit 7, however, the trial Court has discarded and disbelieved the same while passing the impugned judgment and order of acquittal. She has submitted that the impugned judgment and order passed by the trial Court is based on conjuncture and surmises and there is no any cogent and valid reason assigned by the trial Court. 5.1 According to her submission, the trial Court ought to have convicted the accused and ought to have imposed necessary sentence. She has prayed to allow the present appeal and to quash and set aside the impugned judgment and order of acquittal. 6. This Court has perused the judgment and order of acquittal rendered by the Trial Court and carefully considered the rival contentions, evidence and material placed on record. 7. Before discussing the evidence and the relevant aspects, this Court has examined and verified the relevant material produced before the trial Court and perused the evidence of the witnesses. On perusal of the evidence of P.W.1 – Dr.Dipakkumar Vithalbhai Parmar examined at Exhibit 6, it appears that he has tried to support the case of the prosecution as he initially stated that P.W.4 – Parsottambhai Jethabhai Parmar came with yadi to him and complained that on 07.06.2005 i.e. two days prior to visiting doctor was assaulted by the accused and inflicted hockey stick blow and also given kike and fist blow to the complainant and, therefore, he made complaint to this doctor about the pain in stomach and urethra and having trouble in passing urine. Therefore, the P.W.1 admitted the complainant in the hospital as an indoor patient and also referred to the orthopedic department for examination of his injury and on medical examination and after report of the radiologist and other medical papers, P.W.1 has admitted that there was no any serious injury found on the body of the complainant and the injury described by the complainant before the doctor was not serious in nature and the same is recovered within 4-7 days. In the cross-examination, P.W.1 has admitted that the injury which is mentioned and referred in the medical certificate is likely to be caused by the person who plying rickshaw outside the road and he has not found any injury on the body of the complainant either to be caused by the hockey stick or by giving kike and fist blow, meaning thereby the story put forward by the complainant that he was assaulted by the accused and caused injury on 07.07.2006 was falsified by the medical evidence. Even no any independent witnesses have supported the case of the prosecution and though the prosecution has examined panch witnesses, however, they have also not supported the case of the prosecution. This Court has also perused the evidence of the complainant and the investigating officer. The case of the complainant that he was assaulted by the accused on 07.06.2006 and on the next day i.e. on 08.06.2006, the date on which the FIR was registered, he was intercepted by the accused and told him that why he was plying the rickshaw in that area as on 07.06.2006 they have beaten for which there is nothing on record that in which place the accused have beaten the complainant. It appears from the record that no any statements of the independent witnesses have been recorded in nearby vicinity where so-called incident taken place as described by the complainant. So in absence of any other material and independent evidence, except words of the complainant, there is no material come on record to prove the case. On perusal of the evidence of the Investigating Officer, it appears that there is material contradiction and omission in his version. Under such circumstances, the trial Court has rightly disbelieved the case of the prosecution as there was no independent witnesses supported the case, except the evidence of doctor, complainant and investigating officer. On perusal of the evidence of the Investigating Officer, it appears that there is material contradiction and omission in his version. Under such circumstances, the trial Court has rightly disbelieved the case of the prosecution as there was no independent witnesses supported the case, except the evidence of doctor, complainant and investigating officer. On perusal of the evidence of the doctor and investigating officer, it reveals that these witnesses have not supported the case of the prosecution and there was no any corroboration in the evidence of the complainant and, therefore, the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused for the alleged offences. Considering the overall facts and circumstances of the case and perusing the impugned judgment and order of the trial Court, it transpires that the trial Court has not committed any error of facts and law in passing the impugned judgment and order of acquittal. 8. It is well settled by catena of decisions that the an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 9. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused are connected with the commission of the crime with which he is charged. 10. 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 paragraph Nos. 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 No. 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149 , the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, I am in complete agreement with the findings recorded by the trial Court. 11. It is also worthwhile to refer to the recent decision of the Hon’ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon’ble Supreme Court has held and observed in paras-20 and 21 as under:- “20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka, regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus: “42. …. (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The principles read thus: “42. …. (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained.” 12. It is also relevant to refer to the decision of the Hon’ble Supreme Court in the case of Shajan Skaria Vs. State of Kerala reported in AIR 2024 SC 4557 for the purpose of considering the provision of Section 3(1)(x) of the Atrocity Act. The relevant paragraph of this decision are as under:- “56. It is relevant to note that Section 3(1)(r) of the Act, 1989 is similarly worded as the erstwhile Section 3(1)(x) of the Act, 1989 which was in force prior to its substitution with effect from 26.01.2016. 58. We say so for the reason that all insults or intimidations to a member of the Scheduled Caste or Scheduled Tribe will not amount to an offence under the Act, 1989 unless such insult or intimidation is on the ground that the victim belongs to Scheduled Caste or Scheduled Tribe. There is nothing in the transcript of the uploaded video to indicate even prime facie that those allegations were made by the appellant only on account of the fact that the complainant belongs to a Scheduled Caste. From the nature of the allegations made by the appellant, it appears that he is at inimical terms with the complainant. His intention may be to malign or defame him but not on the ground or for the reason that the complainant belongs to a Scheduled Caste. 59. In the aforesaid context, we may refer to and rely upon a three-Judge Bench decision of this Court in Hitesh Verma (supra). The relevant observations are reproduced below: “13. The offence under Section 3(1)(r) of the Act 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 Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that Respondent 2 is a member of Scheduled Caste. xxx xxx xxx 17. In another judgment reported as Khuman Singh v. State of M.P. [Khuman Singh v. State of M.P., (2020) 18 SCC 763 : 2019 SCC OnLine SC 1104], this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under: “15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar” Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 18. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.” (Emphasis supplied) 60. Thus, the dictum as laid aforesaid is that the offence under Section 3(1)(r) of the Act, 1989 is not established merely on the fact that the complainant is a member of a Scheduled Caste or a Scheduled Tribe, unless there is an intention to humiliate such a member for the reason that he belongs to such community. In other words, it is not the purport of the Act, 1989 that every act of intentional insult or intimidation meted by a person who is not a member of a Scheduled Caste or Scheduled Tribe to a person who belongs to a Scheduled Caste or Scheduled Tribe would attract Section 3(1)(r) of the Act, 1989 merely because it is committed against a person who happens to be a member of a Scheduled Caste or Scheduled Tribe. On the contrary, Section 3(1)(r) of the Act, 1989 is attracted where the reason for the intentional insult or intimidation is that the person who is subjected to it belongs to a Scheduled Caste or Scheduled Tribe. We say so because the object behind the enactment of the Act, 1989 was to provide stringent provisions for punishment of offences which are targeted towards persons belonging to the SC/ST communities for the reason of their caste status. a. Meaning of the expression “intent to humiliate” appearing in Section 3(1)(r) of the Act, 1989 61. We say so because the object behind the enactment of the Act, 1989 was to provide stringent provisions for punishment of offences which are targeted towards persons belonging to the SC/ST communities for the reason of their caste status. a. Meaning of the expression “intent to humiliate” appearing in Section 3(1)(r) of the Act, 1989 61. The words “with intent to humiliate” as they appear in the text of Section 3(1)(r) of the Act, 1989 are inextricably linked to the caste identity of the person who is subjected to intentional insult or intimidation. Not every intentional insult or intimidation of a member of a SC/ST community will result into a feeling of caste-based humiliation. It is only in those cases where the intentional insult or intimidation takes place either due to the prevailing practice of untouchability or to reinforce the historically entrenched ideas like the superiority of the “upper castes” over the “lower castes/untouchables”, the notions of ‘purity’ and ‘pollution’, etc. that it could be said to be an insult or intimidation of the type envisaged by the Act, 1989. 62. We would like to refer to the observations of this Court in Ram Krishna Balothia (supra) to further elaborate upon the idea of “humiliation” as it has been used under the Act, 1989. It was observed in the said case that the offences enumerated under the Act, 1989 belong to a separate category as they arise from the practice of ‘untouchability’ and thus the Parliament was competent to enact special laws treating such offences and offenders as belonging to a separate category. Referring to the Statements of Objects and Purposes of the Act, 1989 it was observed by this Court that the object behind the introduction of the Act, 1989 was to afford statutory protection to the Scheduled Castes and the Scheduled Tribes, who were terrorised and subjected to humiliation and indignations upon assertion of their civil rights and resistance to the practice of untouchability. For this reason, mere fact that the person subjected to insult or intimidation belongs to a Scheduled Caste or Scheduled Tribe would not attract the offence under Section 3(1)(r) unless it was the intention of the accused to subject the concerned person to castebased humiliation. 70. For this reason, mere fact that the person subjected to insult or intimidation belongs to a Scheduled Caste or Scheduled Tribe would not attract the offence under Section 3(1)(r) unless it was the intention of the accused to subject the concerned person to castebased humiliation. 70. In our considered view, it is in a similar vein that the term ‘humiliation’ as it appears in Section 3(1)(r) of the Act, 1989 must be construed, that is, in a way that it deprecates the infliction of humiliation against members of the Scheduled Castes and Scheduled Tribes wherein such humiliation is intricately associated with the caste identity of such members. 73. A two-Judge Bench of this Court in Ramesh Chandra Vaishya (supra) explained that for an act of intentional insult to attract the offence under erstwhile section 3(1)(x) of the Act, 1989 (which is identical to Section 3(1)(r) of the Act, 1989) it was necessary that the insult is laced with casteist remarks. Relevant observations is extracted hereinbelow: “18. […] The legislative intent seems to be clear that every insult or intimidation for humiliation to a person would not amount to an offence under section 3(1)(x) of the SC/ST Act unless, of course, such insult or intimidation is targeted at the victim because of he being a member of a particular Scheduled Caste or Tribe. If one calls another an idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any place within public view, this would obviously constitute an act intended to insult or humiliate by user of abusive or offensive language. Even if the same be directed generally to a person, who happens to be a Scheduled Caste or Tribe, per se, it may not be sufficient to attract Section 3(1)(x) unless such words are laced with casteist remarks. […]” 13. Considering the entire evidence on record, it clearly appears that there is no credible evidence to connect the present accused with the alleged crime and the evidence on record is not so convincing to prove beyond reasonable doubt that the accused has committed the alleged crime. Therefore, the accused cannot be convicted on the evidence on record. 14. On perusal of the impugned judgment and order, it clearly transpires that the trial Court has not committed any error of fact and law in appreciating the evidence on record and in acquitting the accused from the charges levelled against them. Therefore, the accused cannot be convicted on the evidence on record. 14. On perusal of the impugned judgment and order, it clearly transpires that the trial Court has not committed any error of fact and law in appreciating the evidence on record and in acquitting the accused from the charges levelled against them. Even on reappreciation of the evidence, it clearly transpires that the prosecution has miserably failed to prove the charge levelled against the accused beyond reasonable doubt. Therefore, the impugned judgment and order of the trial Court is sustainable and the present appeal is liable to be dismissed. 15. In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order of acquittal passed by the trial Court is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.